[Federal Register Volume 62, Number 213 (Tuesday, November 4, 1997)]
[Rules and Regulations]
[Pages 59605-59623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29088]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD05


Endangered and Threatened Wildlife and Plants; Final Rule to List 
the Northern Population of the Bog Turtle as Threatened and the 
Southern Population as Threatened Due to Similarity of Appearance

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) determines 
threatened status pursuant to the Endangered Species Act of 1973, as 
amended (Act) for the northern population of the bog turtle (Clemmys 
muhlenbergii), which ranges from New York and Massachusetts south to 
Maryland. The Service also determines the southern population of the 
bog turtle, which occurs in the Appalachian Mountains from southern 
Virginia to northern Georgia, to be threatened due to similarity of 
appearance to the northern population, with a special rule.
    The bog turtle is threatened by a variety of factors including 
habitat degradation and fragmentation from agriculture and development, 
habitat succession due to invasive exotic and native plants, and 
illegal trade and collecting. This rule implements Federal protection 
and recovery provisions afforded by the Act.

DATES: Effective November 4, 1997.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the Pennsylvania Field 
Office, U.S. Fish and Wildlife Service, 315 South Allen Street, Suite 
322, State College, Pennsylvania 16801.

FOR FURTHER INFORMATION CONTACT: Carole Copeyon, Endangered Species 
Biologist, at the above address (telephone 814/234-4090; facsimile 814/
234-0748).

SUPPLEMENTARY INFORMATION:

Background

    The bog turtle was first described and named as Muhlenberg's 
tortoise (Testudo muhlenbergii) by Johann David Schoepff in 1801 based 
on specimens received in 1778 from Reverend Heinreich Muhlenberg of 
Lancaster County, Pennsylvania. In 1835, L.J. Fitzinger transferred the 
species to the genus Clemmys, where it remains today (Barton and Price 
1955). In 1917, Dunn considered bog turtles within the southern range 
to be distinct, and classified the southern population as Clemmys 
nuchalis (Amato, Behler, Tryon, and Herman 1993). This taxon was 
subsequently synonymized with Clemmys muhlenbergii; however, 
researchers still question the taxonomic status of the northern and 
southern populations (Amato et al. 1993, Klemens in press). Initial 
data from recent preliminary genetic studies, based on examination of 
variability at the 16S ribosomal gene, suggest that there may not be 
significant genetic differences between the northern and southern 
populations. However, due to the conservative nature of this gene in 
other species, any definitive conclusions concerning genetic 
differences between the northern and southern populations is premature 
(Amato et al. 1993).
    The bog turtle is sparsely distributed over a discontinuous 
geographic range extending from New England south to northern Georgia. 
A 250-mile gap within the range separates the species into distinct 
northern and southern populations (Klemens in press, Tryon 1990, Tryon 
and Herman 1990). The

[[Page 59606]]

northern population extends from southern New York and western 
Massachusetts southward through western Connecticut, New Jersey and 
eastern Pennsylvania, to northern Delaware and Maryland. Disjunct 
populations previously occurred in western Pennsylvania and in the Lake 
George and Finger Lakes regions of New York. The western Pennsylvania 
and Lake George populations have been extirpated, and only a remnant 
population exists at one remaining site in the Finger Lakes region. The 
southern population occurs in the Appalachian Mountains from 
southwestern Virginia southward through western North Carolina, eastern 
Tennessee, northwestern South Carolina, and northern Georgia. The 
southern population also occurs in the upper piedmont physiographic 
province of North Carolina. The species' disjunct distribution is 
thought to be the result of Pleistocene and post-Pleistocene climatic 
changes (Lee and Norden 1996).
    The Act defines a species to include any subspecies of fish or 
wildlife or plants, or any distinct population segment (DPS) of any 
species of vertebrate fish or wildlife which interbreeds when mature. 
Based on the disjunct distribution of this species, the northern 
population of the bog turtle is considered a DPS and, therefore, a 
separate species under the Act.
    The bog turtle is the smallest member of the genus Clemmys, with 
the carapace (upper shell) of adults measuring 7.5 to 11.4 centimeters 
(3.0 to 4.5 inches) in length (Bury 1979). The domed carapace is weakly 
keeled and ranges in color from light brown to ebony. The scutes of the 
shell often have lighter-colored centers resembling a starburst pattern 
(Herman and George 1986). The plastron (lower shell) is brownish-black 
with contrasting yellow or cream areas, often along the midline. This 
species is readily distinguished from other turtles by the large, 
conspicuous bright orange, yellow, or red blotch found on each side of 
the head. The species is sexually dimorphic. Males have concave 
plastrons and long, thick tails, and the vent of the male is located 
beyond the posterior carapace margin. Females have proportionately 
higher carapaces, flat plastrons, and relatively short tails, and the 
vent of the female is located beneath the carapace edge (Bury 1979, 
Klemens in press).
    Bog turtles are semi-aquatic and are only active during part of the 
year (Barton and Price 1955). In the northern part of their range, they 
are active from April to mid-October (Arndt 1977, Nemuras 1967). 
Reported periods of inactivity in July and August may be an artifact of 
collecting bias and the difficulty of locating turtles at that time of 
year (Lovich, Herman, and Fahey 1992). Bog turtles hibernate from 
October to April, often just below the upper surface of frozen mud or 
ice (Chase, Dixon, Gates, Jacobs, and Taylor 1989). Their varied diet 
consists of beetles, lepidopteran larvae, caddisfly larvae, snails, 
nematodes, millipedes, fleshy pondweed seeds, sedge seeds, and carrion 
(Barton and Price 1955, Nemuras 1967). Where population estimates are 
available, bog turtles have been found at densities ranging from 7 to 
213 turtles per hectare (Chase et al. 1989). Chase et al. (1989) found 
an average of 44 turtles per site at 9 study sites in Maryland.
    Female bog turtles reach sexual maturity between 5 and 8 years of 
age (Barton and Price 1955, Ernst 1977). Mating occurs in May and June, 
and females deposit from two to six white eggs in sphagnum moss or 
sedge tussocks in May, June, or July (Arndt 1977, Herman 1990, Herman 
and George 1986, Klemens in press). Unlike most other semi-aquatic 
turtles, bog turtles do not leave their wetland habitat and travel to 
dry, upland areas to lay eggs. ``Instead, they select slightly elevated 
sites, generally on Carex stricta tussocks, for nesting within their 
marshy habitat. Nesting areas typically have limited canopy closure, 
support an array of moisture tolerant, low vegetation, and provide 
ample solar exposure'' (Robert Zappalorti, Herpetological Associates, 
in litt. 1997). The eggs hatch after an incubation period of 42 to 56 
days (Arndt 1977, Herman 1990), and the young emerge in August or early 
September (Arndt 1977, Barton and Price 1955). Infertile eggs are 
common (Arndt 1977, Herman 1990, Tryon 1990), and not all females 
produce clutches annually (Tryon 1990). Also, there is no evidence to 
suggest that multiple clutches are deposited in a single season.
    Bog turtles inhabit shallow, spring-fed fens, sphagnum bogs, 
swamps, marshy meadows, and pastures which have soft, muddy bottoms; 
clear, cool, slow-flowing water, often forming a network of rivulets; 
and open canopies (Arndt 1977, Barton and Price 1955, Herman and George 
1986, Klemens in press). In Maryland, Chase et al. (1989) reported that 
bog turtles were found in circular basins with spring-fed pockets of 
shallow water, a substrate of soft mud and rock, dominant vegetation of 
low grasses and sedges, and interspersed wet and dry pockets. In these 
types of habitats, bog turtles often utilize the runways of muskrats 
and meadow voles (Barton and Price 1955, Nemuras 1967, Taylor et al. 
1984). Bog turtles have been found at elevations ranging from near sea 
level in the north to 1500 meters (4500 feet) in the south (Herman and 
George 1986).
    Bog turtles usually occur in small, discrete populations occupying 
suitable wetland habitat dispersed along a watershed (Collins 1990). 
These wetlands are a mosaic of micro-habitats which include dry 
pockets, saturated areas, and areas that are periodically flooded. They 
depend upon this diverse hydrological mosaic, utilizing shallow water 
in spring, and returning to deeper water in winter (Chase et al. 1989). 
Unless disrupted by fire, beaver activity, grazing, or periodic wet 
years, open-canopy wetlands are slowly invaded by woody vegetation. 
They undergo a transition into closed-canopy, wooded swamplands that 
are unsuitable for habitation by bog turtles (Klemens in press, Tryon 
1990). Historically, bog turtles probably moved from one open-canopy 
wetland patch to another, as succession closed wetland canopies in some 
areas, and natural processes (e.g., beaver activity or fire) opened 
canopies in other areas (Klemens 1989).
    Several plant species commonly associated with bog turtle habitats 
include alders (Alnus sp.), willows (Salix sp.), sedges (Carex sp.), 
sphagnum moss (Sphagnum sp.), jewelweed (Impatiens capensis), rice cut-
grass (Leersia oryzoides), tearthumb (Polygonum sagittatum), arrow arum 
(Peltandra virginica), red maple (Acer rubrum), skunk cabbage 
(Symplocarpus foetidus) and bulrushes (Juncus sp. and Scirpus sp.) 
(Arndt 1977; Barton and Price 1955; Herman and George 1986; Taylor, 
Dawson, Beall, and Schaeffer 1984). Pedestal vegetation, such as 
tussock sedge (C. stricta) and sphagnum moss, are utilized for nesting 
and basking (Gelvin-Innvaer and Stetzar 1992, Klemens in press).
    Currently, many wetlands occupied by bog turtles in agricultural 
areas are subject to livestock grazing. Light to moderate grazing may 
function to impede succession by preventing or minimizing the 
encroachment of invasive native and exotic plant species, thereby 
maintaining an intermediate stage of succession (Smith 1994, Tryon 
1990). It has been suggested that in precolonial times the grazing 
activities of large herbivores, such as bison (Bison bison) and elk 
(Cervus canadensis), may have been important in maintaining bog turtle 
habitat (Lee and Norden 1996). The occurrence of bog turtles in 
wetlands grazed by livestock is probably an instance where grazing by 
livestock

[[Page 59607]]

has either replaced grazing by native herbivores or replaced one of the 
other historical factors that would have acted to maintain the wetlands 
in an early successional stage.
    Due to the bog turtle's rarity, small size, predator-evasive 
behavior (i.e., tendency to burrow rapidly into the mud), and habitat 
preferences (e.g., dense herbaceous vegetation), it is difficult to 
obtain reliable bog turtle population demographics. This lack of data 
has led to a misconception as to the number of healthy populations 
found throughout the species' range. For example, some documented bog 
turtle sites support populations consisting primarily of old 
individuals. These populations are slowly disappearing due to 
negligible recruitment of juveniles over a sustained period of time 
(Klemens 1989).
    A protocol was developed to assess the capacity of sites to 
maintain viable populations of bog turtles. Known as the ``Standardized 
Bog Turtle Site-quality Analysis'' (Michael Klemens, Wildlife 
Conservation Society, in litt. 1993), it groups bog turtle occurrences 
into sites based on the likelihood of turtles moving between documented 
occurrence locations and interbreeding. A site is ranked according to 
four factors--(1) habitat size and degree of fragmentation; (2) the 
presence of invasive plants and later successional species; (3) 
immediate threats such as wetland ditching, draining, filling or 
excavation; and (4) the type and extent of land use in the area. Where 
adequate data are available, sites are also ranked according to 
population size and evidence of recruitment.
    Using this site-quality analysis in 1993 and 1994, the individuals 
most familiar with each site (the primary bog turtle researcher(s) in 
each State) assessed and ranked the suitability of almost every known 
northern population site. The ranking process resulted in each site 
receiving a numerical score, and based on these scores, each site was 
then ranked as good, fair, or poor. By incorporating factors related to 
habitat quality and threats, these rankings reflect the suitability of 
the sites to maintain viable bog turtle populations. The classification 
system was based on researchers' best professional judgments regarding 
site suitability. The classifications based upon these scores are 
conservative for several reasons. Threats from illegal collecting were 
not considered in the rankings. Rankings were often based on 
interpretation of old maps (more than 10 years old); therefore, recent 
land use changes such as development were not considered. Also, at some 
sites the presence of turtles had not been confirmed for over 10 years.
    Occurrence refers to a documented specific bog turtle location (a 
single wetland or a road-crossing sighting), one or more of which are 
included in a site. Due to widespread wetland habitat fragmentation 
throughout the turtle's range, most sites are comprised of only one 
small extant occurrence, often isolated from other such occurrences.
    Of 191 known extant bog turtle sites within the northern population 
in 1996, 33 were classified as good, 67 as fair, 76 as poor, and 15 as 
unknown status. The State-by-State summaries given below present 
information primarily about the status and distribution of extant 
northern bog turtle populations/sites within each State.
    In Connecticut, bog turtles are found in the northwestern corner of 
the State in Fairfield and Litchfield Counties. All five remaining 
populations are found on private lands; four of these populations are 
classified as fair and one as poor (Julie Victoria, Connecticut 
Division of Wildlife, in litt. 1994).
    In Delaware, bog turtles were historically reported from 11 
localities in the piedmont and coastal plain of New Castle County 
(Arndt 1977). Currently, only four sites are known to support bog 
turtles, and all of these are classified as fair. Two of these sites 
occur on State lands and two on private property (Lisa Gelvin-Innvaer, 
Jay Greenwood and Bill Zawaki, Delaware Division of Fish and Wildlife, 
in litt. 1994).
    All three known bog turtle populations in Massachusetts occur on 
private property in southern Berkshire County. Two of these sites 
receive some degree of protection through landowner conservation 
agreements. One population is considered good, one fair, and one poor.
    Maryland's 65 remaining extant bog turtle sites occur in the 
piedmont region of Baltimore, Carroll, Cecil and Harford Counties, with 
approximately 97 percent of the habitat privately owned and the other 3 
percent in State ownership (Scott Smith, Maryland Department of Natural 
Resources, in litt. 1994). Seventeen of these sites are classified as 
good, 23 as fair, and 25 as poor. In 1995 and 1996, five additional bog 
turtle sightings were documented from Harford, Baltimore, and Carroll 
Counties. However, most of these occurrences are components of 
previously identified and ranked sites (Smith, in litt. 1996).
    In New Jersey, there are 53 known extant bog turtle sites in 
Burlington, Hunterdon, Monmouth, Morris, Ocean, Somerset, Sussex, 
Union, and Warren counties (James Sciascia, New Jersey Department of 
Fish, Game and Wildlife, and Robert Zappalorti, Herpetological 
Associates, Inc., in litt. 1994; Sciascia, in litt. 1997). Eight of 
these sites are classified as good, 21 as fair, 18 as poor, and 6 are 
of unknown status. Approximately 90 percent of the turtle habitat in 
New Jersey is privately owned, while the State and Federal governments 
own 5 percent each (Sciascia and Zappalorti, in litt. 1994).
    The New Jersey Endangered and Nongame Species Program recently 
conducted extensive surveys to locate and document bog turtle habitat. 
From 1993 to 1995, the habitat suitability of 473 wetlands in 
Hunterdon, Somerset, Sussex, and Warren counties was assessed. Only 77 
sites (16 percent) contained potentially suitable bog turtle habitat, 
and bog turtles were found at only 8 of these wetlands (Sciascia 1996). 
In 1996, additional surveys conducted in Sussex County documented 16 
new bog turtle occurrences, primarily in calcareous fen habitats. These 
fens are restricted to a 40-square-mile area in central Sussex and 
northern Warren counties. The discovery of bog turtles in calcareous 
fen habitats is important to the species' conservation within this area 
of New Jersey and neighboring Pennsylvania. Fens are primarily shrub 
and herb communities formed in low-lying areas where groundwater 
percolates over limestone bedrock. This alkaline seepage water most 
likely retards the growth of canopy-closing trees such as red maple. 
The persistence of this type of shrub/herb community could account for 
the presence of bog turtles (James Sciascia, New Jersey Department of 
Fish, Game and Wildlife, in litt. 1996).
    The bog turtle's range in New York is concentrated primarily in the 
extreme southeastern corner of the State. Disjunct populations 
historically occurred in the Lake George area in eastern New York, in 
the Finger Lakes region in western New York, and in south central New 
York. The Lake George and south central populations have been 
extirpated, and only one extant Seneca County site remains in the 
Finger Lakes region (Alvin Breisch and Michael Kallaji, New York 
Department of Environmental Conservation, and Paul Novak, New York 
Natural Heritage Program, in litt. 1994; Novak, in litt. 1997). 
Potentially, 22 sites remain in southeastern New York; however, only 17 
are considered extant. Of the 18 total remaining extant sites in New 
York (Seneca, Columbia, Dutchess, Putnam, and Orange counties), 5 are 
considered good, 6 fair

[[Page 59608]]

and 7 poor. Nearly all bog turtle habitat (99 percent) occurs on 
private lands; the remaining 1 percent is found on State lands (Breisch 
et al., in litt. 1994).
    In Pennsylvania, bog turtles are still found in 13 of the 17 
counties from which the species was previously reported (Adams, Berks, 
Bucks, Chester, Cumberland, Franklin, Lancaster, Lebanon, Lehigh, 
Monroe, Montgomery, Northampton, and York). Of the 34 remaining sites 
evaluated, 2 sites are considered good, 8 fair, and 24 poor. 
Approximately 85 percent of the bog turtle habitat is found on private 
lands, with the remainder occurring on State and Federal lands (10 
percent and 5 percent, respectively) (Barton, in litt. 1994). In 
addition, between 1994 and 1996, nine new sightings were reported from 
Berks, Chester, and Northampton counties. These sites have yet to be 
evaluated; however, some appear to be small and marginal in quality.
    The extent of the captive bog turtle population is poorly 
documented at this time, with the exception of bog turtles held by 
zoological institutions. According to data from the International 
Species Information System (ISIS), 102 bog turtles are currently held 
by 16 zoos in the United States; 64 percent of these turtles are 
captive born and 24 percent wild born (Judy Hendrickson, ISIS, in litt. 
1997). Only a few people within the range of the northern and southern 
populations have valid State permits to possess bog turtles or conduct 
studies of wild turtles. Although the full extent of the illegally-held 
bog turtle population is unknown, based on evidence of collection and 
trade (see the ``Summary of Factors'' section), it is likely to greatly 
exceed that of the legally-held population.
    Based on documented losses of bog turtles and their habitat, the 
northern population has declined by at least 50 percent, with most of 
the decline occurring over the last 20 years. Habitat destruction and 
illegal collecting for the pet trade are the primary threats to the 
species. Widespread alteration of bog turtle habitat has resulted from 
the draining, ditching, dredging, filling, and flooding of wetlands for 
residential, urban, and commercial development; road construction; 
agricultural activities; and pond and reservoir construction. The 
proximity of many remaining bog turtle populations to rapidly 
developing areas also poses a significant threat to the species.

Previous Federal Action

    The bog turtle was first recognized as a Category 2 candidate 
species by the Service in the December 30, 1982, Federal Register 
notice of review (47 FR 58454). It was later retained as a Category 2 
species in subsequent notices of review (60 FR 37958, September 18, 
1995; 54 FR 554, January 6, 1989; and 56 FR 58804, November 21, 1991). 
Reclassification of the bog turtle to Category 1 was reflected in the 
November 15, 1994, animal notice of review (59 FR 58982). On February 
28, 1996 (61 FR 7457), the Service published a notice of review that no 
longer included species formerly referred to as Category 2 candidate 
species. The notice revised the definition of the term ``candidate'' as 
taxa for which the Service has on file sufficient information on 
biological vulnerability and threats to list them as endangered or 
threatened species. The northern population of the bog turtle was 
included as a candidate in this February 28 notice of review. On 
January 29, 1997, the Service published a proposed rule in the Federal 
Register (62 FR 4229) to list the northern population of the bog turtle 
as threatened and the southern population as threatened due to 
similarity of appearance.
    The processing of this final rule conforms with the Service's 
listing priority guidance published in the Federal Register on December 
5, 1996 (61 FR 64475). The guidance clarifies the order in which the 
Service will process rulemakings following two related events: (1) the 
lifting, on April 26, 1996, of the moratorium on final listings imposed 
on April 10, 1995 (Public Law 104-6), and (2) the restoration of 
significant funding for listing through enactment of the omnibus budget 
reconciliation law on April 26, 1996, following severe funding 
constraints imposed by a number of continuing resolutions between 
November 1995 and April 1996. The guidance calls for giving highest 
priority to handling emergency situations (Tier 1) and second highest 
priority to resolving the listing status of outstanding proposed 
listings (Tier 2). A lower priority is assigned to resolving the 
conservation status of candidate species and processing administrative 
findings on petitions to add species to the lists or reclassify species 
from threatened to endangered (Tier 3). The lowest priority is given to 
processing critical habitat determinations, delistings, and other 
reclassifications (Tier 4). Processing of this final rule is a Tier 2 
action since it resolves the conservation status of a proposed species.
    In 1975, the bog turtle was added to Appendix II of the Convention 
on International Trade in Endangered Species of Wild Fauna and Flora 
(CITES) in order to monitor trade in the species. In 1991, the New York 
Zoological Society submitted a proposal to the Service requesting the 
transfer of the bog turtle from Appendix II to Appendix I of CITES 
(Anon. 1991). In response to a notice (56 FR 33895; July 24, 1991) 
calling for changes to the CITES Appendices, a total of 13 comments 
were received concerning the bog turtle proposal. All commenters 
recommended transferring the bog turtle from Appendix II to Appendix I 
due to the increased number of bog turtles being advertised for sale, 
the increased price being paid for individuals and pairs, and illegal 
trade not being reported under CITES. In the March 4, 1992, Federal 
Register notice (57 FR 7722), the Service announced that the party 
members to CITES agreed to transfer the bog turtle from Appendix II to 
Appendix I; and on June 11, 1992, the species was officially added to 
Appendix I.

Summary of Comments and Recommendations

    In the January 29, 1997, proposed rule and associated 
notifications, all interested parties were requested to submit factual 
reports or information that might contribute to the development of a 
final rule. Appropriate Federal and State agencies, county governments, 
scientific organizations, and other interested parties were contacted 
and requested to comment. Notices were published in newspapers across 
the range of the species inviting public comment.
    On March 14, 1997, the Service received a written request for a 
public hearing from Mr. Gary Hoffman, Chief Engineer for the 
Pennsylvania Department of Transportation (PennDOT). As a result, on 
April 3, 1997, the Service published a notice in the Federal Register 
(62 FR 15873) announcing the public hearing. The Service conducted a 
public hearing on April 21, 1997, at the Oley High School in Oley, 
Pennsylvania. Testimony was taken from 7:00 to 9:00 p.m. (Eastern 
Standard Time). Thirty-two of the approximately 200 people attending 
the hearing presented testimony. During the comment period, the Service 
received 237 comments (letters and oral testimony) from 15 State 
agencies; 6 local governments; and 216 individuals, groups, and 
organizations. Eight opposed, 218 supported, and 11 were neutral on the 
proposed action.
    The Service has reviewed all of the written and oral comments 
received during the comment period. Some comments dealt with matters of 
opinion or issues unrelated to the question of

[[Page 59609]]

listing, and are, therefore, not addressed as part of this rulemaking. 
Comments updating the data presented in the ``Background'' or ``Summary 
of Factors Affecting the Species'' sections are incorporated into those 
sections of this final rule. Opposing comments and other substantive 
comments concerning the rule have been organized into specific issues, 
which may be paraphrased. Comments of a similar nature are grouped 
together by issue. These issues and the Service's response to each are 
summarized as follows.

Issue 1

    Two commenters thought the Service should consider economic impacts 
when listing species. One commenter further contended that ``all state 
and federal actions designed to protect alleged threatened and/or 
assumed endangered species pursuant to the ESA should demonstrate that 
the benefits to humans exceed the costs to humans.''
    Service Response: Under section 4(b)(1)(A) of the Act, a listing 
determination must be based solely on the best scientific and 
commercial data available. The legislative history of this provision 
clearly states the intent of Congress to ``ensure'' that listing 
decisions are ``based solely on biological criteria and to prevent non-
biological criteria from affecting such decisions'' (H.R. Rep. No. 97-
835, 97th Cong., 2d Sess. 19 (1982)). As further stated in the 
congressional report, ``economic considerations have no relevance to 
determinations regarding the status of species.'' Because the Service 
is specifically precluded from considering economic impacts in a final 
decision on a proposed listing, the Service did not consider the 
possible economic consequences of listing the bog turtle.

Issue 2

    Two commenters contended that the Service did not provide adequate 
opportunity for public comment, and should therefore consider extending 
the comment period and holding additional public hearings.
    Service Response: The Service went through an extensive 
notification process to make the public aware of the proposal, 
including Federal Register notification, letters to specific concerned 
parties, and notifications to local newspapers. In order to increase 
the opportunity for public comment, the Service had a 90-day comment 
period on the proposed rule, although only a 60-day comment period is 
required. In response to a request by the PennDOT, the Service also 
held a public hearing within the core of the bog turtle's range in 
Pennsylvania. These processes were described at the beginning of this 
section.

Issue 3

    One commenter requested additional information regarding the 
scientific basis for identifying a species as federally threatened when 
the species is not considered threatened throughout its entire 
biological range.
    Service Response: The Endangered Species Act requires the Secretary 
of the Interior (or Commerce, depending on jurisdiction) to determine 
whether species are endangered or threatened. A ``species'' as defined 
under the Act includes species, subspecies and ``any distinct 
population segment of any species of vertebrate fish or wildlife which 
interbreeds when mature.'' From a biological perspective, the Act 
supports the goals of conserving genetic resources, and maintaining 
natural systems and biodiversity over a representative portion of a 
species' historical occurrence. In that respect, the listing of DPS's 
may allow the Service to protect and conserve species and the 
ecosystems upon which they depend before a large-scale decline occurs 
that would necessitate listing a species throughout its entire range. 
This may allow protection and recovery of declining organisms in a more 
timely and less costly manner, and on a smaller scale than the more 
costly and extensive efforts that might be needed to recover an entire 
species.

Issue 4

    One commenter alleged that the northern population of the bog 
turtle is not a DPS as defined by Service policy, partially due to the 
lack of documented genetic differences between the northern and 
southern populations.
    Service Response: According to the Service's policy on Distinct 
Population Segments (61 FR 4725), three elements are considered 
regarding the potential recognition of a DPS as endangered or 
threatened--(1) discreteness of the population segment in relation to 
the remainder of the species to which it belongs; (2) the significance 
of the population segment to the species to which it belongs; and (3) 
the population segment's conservation status in relation to the Act's 
standards for listing.
    With respect to the bog turtle, the northern population meets the 
``discreteness'' criterion in that it is markedly separated from the 
southern population by a distance of approximately 250 miles. Evidence 
of such discreteness may include genetic or morphological differences, 
but this is not a requirement. The northern population of the bog 
turtle meets the ``significance'' criterion because loss of this DPS, 
which occurs in seven States and represents over 50 percent of the 
species' range, would result in a significant void in the range and 
distribution of the species. The ``status'' criterion is met in that 
the northern population of the bog turtle, when evaluated with respect 
to the Act's listing factors (see the ``Summary of Factors Affecting 
the Species'' section), qualifies for listing as threatened.

Issue 5

    With regard to habitat loss, one commenter questioned whether the 
Service had historical data on habitat, populations, and the species' 
range, or only considered information from the past 20 years, which may 
represent an artificial baseline and an ``unusual period in the 
species' natural history.'' In considering the species historical 
baseline, this commenter questioned whether bog turtles may have 
occurred over a smaller range in the distant past, but later followed 
deforestation into open areas and livestock pastures along floodplains.
    Service Response: In assessing the status of the bog turtle, the 
Service reviewed the best available information regarding populations, 
past and present distribution, and habitat loss. Information provided 
by State wildlife agencies, natural heritage programs, researchers, and 
others dated back to the late 1800's, and indicated a reduction in 
range, and loss of habitat and populations over this period of time, 
with the documented loss dramatically accelerating over the past 20 
years. In this respect, the past 20 years may represent an unusual 
period in the species' natural history--a period of unprecedented 
decline.
    Bog turtles inhabit open canopy wetlands, a habitat type which was 
more common historically than today because (1) historically, the 
ecological factors of fire and beaver activity were unimpeded in 
creating and maintaining these areas, and (2) since the 1800's, wetland 
draining, dredging, and filling have become a prevalent practice of 
land conversion for development, agriculture, and resource extraction. 
Bog turtles are occasionally found in grazed wet pastures, and it has 
been suggested that in precolonial times the grazing activities of 
large herbivores, such as bison and elk, may have been important in 
maintaining bog turtle habitat (Lee and Norden 1996). Thus, the 
occurrence of bog turtles in wetlands lightly grazed by livestock is 
probably an instance where grazing by livestock has replaced grazing by 
native herbivores, or replaced one of the other historical factors that

[[Page 59610]]

would have acted to maintain the wetlands in an early successional 
stage.

Issue 6

    One commenter suggested that the decline in bog turtle habitat may 
be due to farm pastures evolving into habitat areas unsuitable for bog 
turtles.
    Service Response: Bog turtles are occasionally found in grazed wet 
pastures, and vegetative succession in these habitats is a contributing 
factor, though not the only factor, to the species' decline. Light to 
moderate grazing may impede vegetative succession by preventing or 
minimizing the encroachment of invasive native and exotic plant 
species, and it appears that this level of grazing helps to maintain 
the intermediate stage of succession required by the bog turtle (Smith 
1994, Tryon 1990). When grazing is discontinued the habitat becomes 
less suitable (or unsuitable) due to succession.

Issue 7

    Three commenters requested that the Service delay or not list the 
bog turtle due to an insufficient amount of data to justify listing. 
One commenter alleged that a single modeling study (i.e., the 
assessment of sites using the ``Standardized Bog Turtle Site-quality 
Analysis'') rather than a sufficient number of diverse studies were 
used to support the listing. This commenter also contended that the 
information used to justify the listing was not adequate because the 
Service did not cite any studies that might question the validity of 
the proposal, and that where there are data gaps, the Service must 
complete studies to close those gaps. No data or studies were provided 
or cited by these commenters supporting their assertion that the 
information utilized by the Service was incomplete or incorrect.
    Expressing a contrary view, peer reviewers and several other 
biologists familiar with the species stated that the Service had 
clearly documented the species status and threats to its existence, and 
concurred that listing was warranted.
    Service Response: The Service concludes, as detailed in the 
``Background'' and ``Summary of Factors Affecting the Species'' 
sections, that there are sufficient biological data to warrant listing 
of the bog turtle under the Act. Information, studies, field data, and 
site analyses provided by biologists, law enforcement personnel, and 
others familiar with the bog turtle and its habitat provided adequate 
information on the distribution, habitat requirements, and, most 
importantly, threats to the bog turtle to warrant the present action. 
The listing process includes an opportunity for the public to comment 
and provide information that is evaluated and considered by the Service 
before making a final decision. The additional data provided by 
respondents during the comment period, and other appropriate 
information available to the Service have been incorporated into this 
final rule; none of these data indicated that this taxon is not 
threatened.

Issue 8

    Two commenters contended that the Service has insufficient 
population data to justify listing the bog turtle.
    Service Response: The Service agrees that estimates of total 
population are lacking for this species; however, the Service 
considered several additional factors that are also important in 
developing a biologically accurate species status assessment. The 
biological security of many declining species is more a function of the 
number of healthy local populations than the total number of 
individuals in the wild. In addition to considering the number of sites 
and subpopulations comprising the northern population, the Service also 
considered factors such as the size of existing subpopulations, 
historical and current rates of decline, the species' low recruitment 
potential, distribution and proximity of subpopulations, quantity and 
quality of available habitat, genetic diversity, and imminent and 
potential threats to the species and its habitat. Therefore, although 
quantitative sampling has not been completed throughout the range of 
the bog turtle, pertinent and significant information regarding the 
other aspects of the species' status is available. The decreasing 
number of bog turtle sites and the quality of these remaining sites 
throughout the species' historical and current distributions are a more 
accurate reflection of the turtle's status than are rough estimates of 
the total number of bog turtles. When all of these factors are 
considered for the bog turtle, it is clear that listing is warranted.

Issue 9

    Seven commenters questioned or criticized the use of a model (i.e., 
the ``Standardized Bog Turtle Site-quality Analysis'') to assess bog 
turtle sites, claiming that such evaluations are qualitative and 
subjective, and that such assessments should be based on field data. 
One commenter requested additional information regarding the methods 
and data used to characterize sites.
    Service Response: Extensive surveys of potential wetland habitats 
have been conducted for bog turtles within the range of the northern 
population. Most of these surveys were designed to primarily document 
bog turtle presence, not to evaluate habitat quality, threats, or 
population demography. Merely knowing the total number of occupied bog 
turtle sites did not allow the Service to adequately assess the status 
of this species, however. Therefore, a ``Standardized Bog Turtle Site-
quality Analysis'' was developed by Dr. Michael Klemens in conjunction 
with other bog turtle researchers to qualitatively assess the capacity 
of sites to maintain viable populations of bog turtles. The Service 
requested that State wildlife agencies, natural heritage programs, and 
researchers evaluate known bog turtle sites using this site analysis 
protocol. The evaluators used site-specific information on habitat 
conditions and threats obtained from field investigations and maps. 
Using these data, each site received a numerical score ranging from one 
to five for each of four factors, including--(1) habitat size and 
degree of fragmentation; (2) percent coverage of invasive plants and 
later successional species; (3) proximity of major threats (e.g., 
wetland alteration via ditching, draining, filling, or excavation); and 
(4) the type and extent of land use within a one-mile radius of the 
site. When available, data on population size and recruitment were also 
used. Although qualitative in nature, the Service believes that this 
method presented a more objective approach to assessing the status of 
the bog turtle than simply looking at the total number of sites, 
without regard to habitat quality and threats. The methods and site 
data are contained within the administrative file (see ADDRESSES 
section).

Issue 10

    Two commenters questioned whether certain factors (i.e., predation, 
flooding of habitat by beaver, mortality due to vehicles and livestock, 
and pollution) pose a sufficient threat to justify listing.
    Service Response: Although these factors pose a significant threat 
to several known bog turtle sites, none of them, when considered alone, 
poses a sufficient threat to the northern population to justify 
listing. When making a listing determination, however, the Service 
assesses the potential impact of all threats to the species. Although 
listing of a species might not be justified based upon a single factor, 
when all factors are considered collectively, the threat may be 
substantial enough to warrant listing. Such is the case for the bog 
turtle (see

[[Page 59611]]

the ``Summary of Factors Affecting the Species'' section).

Issue 11

    One commenter felt that the Service relied almost exclusively on 
previous habitat loss to justify the listing, rather than focusing on 
the present or threatened destruction, modification, or curtailment of 
the species' habitat.
    Service Response: The Service considers a variety of factors in 
making a listing determination. Although historical habitat loss and 
rates of decline are considered during the species' status assessment, 
many other factors, including current rates of decline, potential and 
imminent threats, number and status of populations, and amount and 
quality of remaining habitat, are evaluated as well. Historical habitat 
loss and rates of decline are utilized by the Service to ascertain if a 
species is undergoing a precipitous or gradual decline. The Service 
considered the historical trend information in combination with all 
other information to determine whether listing was warranted.

Issue 12

    One commenter questioned whether it was warranted to list the bog 
turtle in the north if most of the trade occurs in the south, where the 
species is not threatened.
    Service Response: Trade occurs in the range of the northern 
population and poses a threat to the northern population, as documented 
under factor ``B'' in the ``Summary of Factors Affecting the Species'' 
section. When considered in conjunction with the other factors 
affecting the species, listing of the northern population is warranted.

Issue 13

    Two commenters questioned the degree of threat posed by illegal 
collecting. Specifically, one commenter did not believe that over 2000 
bog turtles had been shipped overseas for trade, thinking the number 
more likely to be 20. Another commenter contended that the Service's 
``inference that demand for turtles is increasing simply because the 
price is increasing is questionable.'' Neither commenter supplied the 
Service with any data or further information to substantiate these 
assertions.
    Service Response: Considering the number of bog turtles that have 
been found in the possession of individual collectors, the Service has 
no reason to discount the overseas trade information. The Service's 
inference about price and demand for turtles is based on the Service's 
experience with other species vulnerable to trade. This inference is 
also based upon principles of economics (when supply does not meet 
demand, price increases); increasing prices for bog turtles likely mean 
that demand is increasing while the supply of wild bog turtles is 
decreasing.
    Threats from illegal collection are real. Because bog turtles are 
not uniformly distributed over their range, collecting is often focused 
on a known source or site, thereby threatening the entire population at 
the site with extirpation. Listing pursuant to the Act will close the 
loopholes in the various existing protective laws and make it easier to 
prove illegal collecting activities.

Issue 14

    Six commenters questioned the Service's assertion that existing 
regulations are inadequate to protect the bog turtle. They argued that 
Federal listing is unnecessary and redundant because the bog turtle is 
already protected as a State-listed species. Two of these commenters 
argued that existing wetland regulations are adequate to protect the 
bog turtle.
    Expressing a contrary position, 38 commenters (including all peer 
reviewers) noted that Federal, State, and local laws have been 
ineffective in providing protection for the bog turtle and its habitat. 
Several commenters noted that bog turtle habitat is particularly 
vulnerable due to various provisions of Federal and State wetland 
regulations, including agricultural exemptions, general permits, and 
nationwide permits. Referring to Pennsylvania's wetland permitting 
program, the Monroe County Conservation District noted that ``tracking 
of the state's program demonstrates that permits are generally being 
issued as requested which will further fragment habitat locally over 
time.'' Another commenter noted that between 1988 and 1996, 1181 
actions were authorized through general permits, and none were denied 
in 3 Pennsylvania counties inhabited by bog turtles. Several commenters 
noted that State endangered species laws are ineffective in deterring 
collection and trade.
    Service Response: Based on an examination of the available 
information, the Service has determined that proposed and on-going 
damage or destruction of wetlands due to development and agriculture 
throughout the range of the northern population is prevalent despite 
existing Federal, State, and local regulations, and that existing 
levels of protection are not adequate to assure the survival of the bog 
turtle. In addition, although the bog turtle is State-listed throughout 
its range, State laws are not sufficient or able to address the threats 
of collection and trade. For example, some State law penalties are not 
as stringent as others, and law enforcement priorities vary between 
States. A more detailed discussion of the inadequacy of existing 
regulations can be found under the ``Summary of Factors Affecting the 
Species'' section. Listing pursuant to the Act will provide consistency 
by providing a uniform regulation that applies across all States.

Issue 15

    Two commenters questioned the reliability of surveys in concluding 
that previously occupied sites were no longer occupied by bog turtles. 
Specifically, one commenter did not believe that the number of 
extirpated populations was as high as reported. He noted that surveyors 
are not always successful in locating bog turtles, even in wetlands 
where turtles are known to occur. Another commenter contended that some 
sites may no longer exist, but this ``may only be due to the bog turtle 
populations moving to another site.''
    Service Response: The Service, State wildlife agencies, and bog 
turtle researchers recognize the difficulties associated with 
conducting bog turtle surveys; even under the best conditions, bog 
turtles can be difficult to locate. For those previously documented bog 
turtle sites that still bore evidence of potentially suitable habitat, 
repeated surveys were conducted by qualified surveyors before 
concluding that bog turtles were indeed extirpated from the site.
    Although historically bog turtles probably moved from less suitable 
wetlands (e.g., those undergoing succession) to more suitable wetlands 
(e.g., those recently formed, or where succession was set back by 
natural processes), it is much less likely that such movements would be 
successful today. Bog turtle habitats are now highly fragmented, making 
successful immigration and emigration difficult due to loss of wetland 
travel corridors, and the prevalence of roads, subdivisions, and 
agricultural land near, and often encircling, many sites. In addition, 
more habitat is becoming unsuitable, and fewer potentially suitable 
wetland sites are becoming available because those natural processes 
that served to maintain and create bog turtle habitat have been 
suppressed or are no longer operative (see the ``Summary of Factors 
Affecting the Species'' section).

[[Page 59612]]

Issue 16

    One commenter questioned the thoroughness and geographic extent of 
the surveys that had been conducted for the species range-wide, 
including the area between the currently known northern and southern 
populations.
    Service Response: Prior to preparation of the proposed rule, the 
Service assessed the status of the northern and southern populations. 
At that time, the Service queried State wildlife agencies, natural 
heritage programs, and bog turtle researchers about the adequacy of 
surveys conducted to date. Based on their responses, approximately 10 
to 20 percent of the potentially suitable bog turtle habitat within the 
northern range remains to be surveyed. Surveys of potential bog turtle 
habitat continue in most of the northern range States. Survey coverage 
is much less complete in the southern range States, particularly in 
North Carolina and Virginia, where less than 50 percent of the 
potentially suitable habitat has been surveyed. A comprehensive survey 
of the southern population is currently underway, as discussed under 
Issue 20. Numerous herpetological surveys have failed to locate bog 
turtles between the northern and southern populations.

Issue 17

    The PennDOT proposed that a task force be established to develop a 
candidate conservation agreement for the bog turtle, rather than list 
the species. The PennDOT felt such an agreement would provide a greater 
benefit to the species than listing, while at the same time minimizing 
Federal intervention, and provide regulatory relief should the species 
be listed in the future. The PennDOT also indicated that they would be 
precluded from pursuing proactive efforts to conserve the bog turtle 
after listing occurs.
    Service Response: Candidate conservation agreements are formal 
agreements between the Service and one or more parties (i.e., land 
owners, land managers, or State fish and wildlife agencies) to address 
the conservation needs of proposed or candidate species. The 
participants take on the responsibility of developing the agreement, 
and voluntarily commit to implementing specific actions that will 
remove or reduce the threats to the subject species, thereby 
contributing to stabilizing or restoring the species. Conservation 
benefits to the species may include an increase in habitat 
connectivity, restoration or enhancement of habitats, maintenance or 
increase of population numbers or distribution, and establishment of 
buffers for protected areas. The ultimate goal of any candidate 
conservation agreement is to remove threats to the species thereby 
eliminating the need for listing under the Act.
    In order to preclude the need for listing the bog turtle, a 
sufficient number of candidate conservation agreements would have to be 
developed and implemented throughout the seven-State range of the 
northern population to remove enough threats for the Service to 
conclude that the bog turtle is no longer in need of protection under 
the Act. The Service has not been approached by any property owners, 
land managers, or State wildlife agencies regarding development of 
candidate conservation agreements. Also, although the PennDOT suggested 
the development of such an agreement, they have not proposed a specific 
plan, nor would they have control over implementation of such a plan 
since they do not own or manage land containing any known bog turtle 
sites.
    Most State wildlife agencies within the range of the northern 
population have expressed support for Federal listing of the bog 
turtle, often citing the vulnerability of the species to illegal 
collection and the need for Federal listing to address this threat. 
Because candidate conservation agreements would be unable to address 
the significant threats of trade and illegal collection, their 
implementation would not preclude the need to list the bog turtle under 
the Act.
    Regarding implementation of proactive efforts to conserve bog 
turtles, these efforts would be encouraged, not precluded, by the 
Service after listing. Because the bog turtle occurs primarily on 
private property, the Service fully realizes that recovery of this 
species will depend upon the voluntary cooperation of private 
landowners, and welcomes them as partners in the recovery effort. The 
Service will work to provide technical assistance to those property 
owners and land managers who wish to implement conservation measures 
for this species.

Issue 18

    Forty-one commenters (including two peer reviewers) recommended 
that the Service list the northern population as endangered rather than 
threatened. Although little additional information was offered by these 
commenters to support the change in status, some argued that the 
threats (particularly the inadequacy of existing regulations) were 
substantial enough to support such a listing. Others contended that the 
information in the proposed rule supported an endangered listing, or 
felt that the species would receive better protection if designated as 
endangered.
    The Tortoise and Freshwater Turtle Specialist Group of the 
International Union for the Conservation of Nature (IUCN) commented 
that they recently evaluated the status of the bog turtle and added it 
as ``endangered'' to their 1996 IUCN Red List. Based on the information 
in the proposed rule, as well as their extensive knowledge of the 
species and threats to its survival, they concluded that the northern 
population should be federally listed as endangered.
    Service Response: Based on the available information on the bog 
turtle's status, and a careful assessment of threats, the Service 
proposed the bog turtle for listing as threatened. Although the 
northern population of the bog turtle faces serious ongoing and 
potential threats, it is not currently in imminent danger of 
extinction. Although some additional data on threats and the species' 
status were received during the public comment period, these data did 
not justify a change in the proposed classification of threatened. The 
Service, therefore, still believes that a listing of threatened is 
appropriate for the northern population.

Issue 19

    One commenter stated that listing of the southern population must 
be based on more than its similar physical appearance to the northern 
population.
    Service Response: Listing of the southern population as threatened 
due to similarity of appearance is based upon more than its similar 
physical appearance to the northern population, as detailed in the 
proposed rule and this final rule (see ``Similarity of Appearance'' 
section).

Issue 20

    The Service received 10 comments disagreeing with the proposed 
listing of the southern population as threatened due to similarity of 
appearance. Four commenters recommended listing the bog turtle as 
threatened or endangered in Georgia, Tennessee, and/or South Carolina, 
specifically excluding North Carolina and Virginia. Six commenters 
recommended listing the entire southern population as threatened or 
endangered. In addition, one commenter stated that the Service has 
insufficient data on the southern population to say that it is not 
biologically threatened or endangered at this time.
    Service Response: The northern and southern populations of the bog 
turtle can each be considered a DPS under the Service's DPS Policy (see 
discussion under Issue 4). However, while both

[[Page 59613]]

populations meet the ``discreteness'' and ``significance'' criteria 
under this policy, the Service only has sufficient status and threat 
data on the northern population to justify its listing.
    Prior to proposing the northern population of the bog turtle for 
listing, the Service conducted a status review of both the northern and 
southern populations. Several factors weighed into the Service's 
decision not to propose the southern population for listing, 
including--(1) the recent discovery of bog turtle sites in the Piedmont 
physiographic province of North Carolina, well outside the species' 
previously known Appalachian Mountains range; (2) limited information 
regarding threats; and (3) inadequate survey coverage within the 
southern range. A comprehensive status survey of the southern 
population is currently underway and is anticipated to be completed by 
December 1999. The Service agrees that it is premature to draw any 
conclusions regarding the status of the southern population until 
additional survey and threat information becomes available.
    Although the Service could have delayed action on the northern 
population until such time that additional data became available on the 
southern population, such an action would have been irresponsible 
considering the northern population faces documented and substantial 
threats, and forthcoming data on the southern population may or may not 
demonstrate that it qualifies for Federal listing.
    Federal listing of only a portion of the southern population (e.g., 
bog turtles occurring in Georgia, South Carolina, and Tennessee) is not 
appropriate because subpopulations do not qualify as legitimate listing 
entities (i.e., DPS's) under the Service's DPS Policy. Also, boundaries 
between States are not considered when determining whether a population 
is ``discrete'' under the DPS Policy.

Issue 21

    Five commenters expressed concerns that listing of the southern 
population as threatened due to similarity of appearance will result in 
intentional destruction of bog turtle habitat by landowners who fear 
the potential for future listing, who don't understand what the 
similarity of appearance listing means, or who don't believe that the 
southern population will be regulated differently from the northern 
population. Some of these commenters were also concerned that the 
special rule exempting incidental take would further contribute to loss 
of bog turtle habitat in the southern range.
    Service Response: The Service recognizes that it has a 
responsibility to conduct outreach activities to ensure that the public 
understands the implications of the similarity of appearance listing 
for the southern bog turtle population. Because bog turtle collection 
and trade are already prohibited acts under State law throughout the 
southern range, Federal listing will have no effect on landowners 
within the southern range unless they are engaged in these already 
illegal activities. Wanton destruction of bog turtle habitat within the 
southern range, however, could precipitate the action that these 
landowners would most like to avoid (i.e., Federal listing of the 
southern population).
    While the special rule for the southern population does exempt 
incidental take, this does not mean that the Service condones the 
destruction of bog turtle habitat in the southern range. The Service 
recognizes that the bog turtle is State-listed in all five southern 
range States, and hopes that land owners, land managers, and Federal, 
State and local agencies will take this into account and give the 
species the full consideration it deserves when planning and 
implementing projects.

Issue 22

    The Connecticut Farm Bureau Association presented information which 
they felt contradicted the Service's assertion that deleterious 
agricultural practices are affecting the bog turtle. They stated that 
``according to USDA/NARCS data, between 1982 and 1992, the amount of 
cropland still requiring conservation treatment declined by nearly a 
quarter. Pasture and forest acres needing conservation treatment also 
declined between 1982 and 1992.''
    Service Response: While the information presented may reflect 
positive national trends in soil conservation, it also implies that 
progress is slow and incomplete (i.e., in 10 years, less than 25 
percent of the land needing conservation treatment received such 
treatment). It also does not contradict available information on known 
and potential threats to bog turtles posed by agricultural activities, 
including conversion of wetlands to farm ponds; heavy grazing; 
hydrological alteration of wetlands (e.g., draining, ditching); and 
chemical and sediment input to wetlands.

Issue 23

    Seven commenters criticized the Service's decision not to designate 
critical habitat for the bog turtle. Three of these commenters felt 
that the additional protection and recovery benefits afforded by such 
designation would outweigh the potential risk from increased 
collecting. Four commenters who opposed the listing stated that the 
Service's failure to identify critical habitat would mean that 
landowners could be found in violation of the Act without knowledge of 
where the species' habitat is located. They also contended that 
landowners have a right to know how the listing will affect use of 
their property.
    Expressing a contrary view, several commenters concurred with the 
Service's decision not to designate critical habitat, citing the threat 
posed by illegal collection and the pet trade.
    Service Response: The Service maintains that the risks associated 
with designation of critical habitat for the bog turtle outweigh any 
benefits of such designation. Once sites become publicly known, they 
can be quickly exploited by collectors; exploitation of sites by 
collectors soon after the sites had become publicly known has been 
documented. Due to the small size of existing populations and the low 
reproductive and recruitment potential of this species, the removal of 
even a few breeding adults can do irrevocable damage to a population. 
Therefore, due primarily to the threat of illegal collection, the 
Service concludes that designation of critical habitat is not prudent, 
as discussed in detail in the ``Critical Habitat'' section of this 
rule.
    The Service appreciates the concern that landowners have about the 
potential implications of having a federally listed species on their 
property. Therefore, in order to increase awareness of the effect of 
listing on proposed and ongoing activities, and minimize the likelihood 
of landowners unknowingly affecting listed species and their habitat, 
the Service has identified those activities that would or would not 
constitute a violation of section 9 of the Act, as detailed in the 
``Available Conservation Measures'' section. Questions regarding 
whether specific activities may constitute a violation of section 9 
should be directed to the appropriate Service Field Office. In 
addition, based on information provided by State wildlife agencies and 
natural heritage programs, the Service notified persons (within the 
northern range States) having known bog turtle habitat on their 
property about the proposed rulemaking, and will notify these 
landowners about the final listing as well.

[[Page 59614]]

Issue 24

    One commenter noted that some bog turtles are legally possessed by 
Maryland citizens as grandfathered animals (i.e., they were in 
possession prior to State listing), and questioned whether it would be 
a violation of section 9 to possess these turtles.
    Service Response: The Service would not consider it a violation of 
section 9 for a person to possess bog turtles, if at the time of 
Federal listing, those bog turtles were legally in their possession 
under a permit or other provisions (e.g., ``grandfathering'' 
provisions) of State law. Documentation (e.g., valid State permit) is 
recommended to serve as proof of legal possession. However, as with 
other listed species, a ``grandfathered'' bog turtle or its progeny 
cannot be sold in interstate commerce.

Issue 25

    One commenter noted that the market value of the bog turtle will 
increase once the species is listed, which will likely lead to 
increased take from the wild. They recommended that the Service address 
this concern by either enhancing law enforcement activities, or 
allowing for the legal trade of captively-produced bog turtles to meet 
market demand.
    Service Response: Although Federal listing of the bog turtle may 
increase its market value, it is unclear whether this will result in 
increased collection pressure. The Service recognizes that Federal 
listing of the bog turtle may serve as a deterrent to some collectors. 
The subsequent smaller market source for bog turtles would increase the 
vulnerability of large-scale illegal operations to exposure. 
Fortunately, public awareness about the plight of this species has 
increased dramatically since the proposed rulemaking. This has prompted 
some citizen groups to establish surveillance at bog turtle sites to 
protect the turtles from collection. The Service applauds the efforts 
of these groups, and recognizes that concerned citizens, landowners, 
and State law enforcement personnel have a vital role to play in 
protecting this vulnerable species from collection. The Service 
anticipates that its law enforcement efforts will increase as well in 
response to the Federal listing of the bog turtle.
    The Service believes that if trade in captive-produced bog turtles 
were allowed, it would pose a significant threat to wild bog turtles. 
We have noted that despite State-listing throughout its range, and the 
existence of some captive breeding stock, bog turtles are still being 
collected from the wild. Also, considering the low reproductive 
potential of the species and the small number of bog turtles known to 
be legally in captivity, it is unlikely that there are enough bog 
turtles in captivity to legally supply the market demand. If trade were 
legalized and the demand could not be met by captive-produced turtles, 
it is very likely that turtles would be taken from the wild for direct 
sale and for use as breeders. In addition, it would be difficult, if 
not impossible, to devise a process that would preclude the possibility 
of substituting wild-caught turtles or eggs for those claimed to be 
captive-produced. Finally, it would be extremely difficult to prosecute 
a case of illegal take unless the actual taking from the wild was 
observed or extensive circumstantial evidence was available. Based on 
these factors, the Service believes that legalizing trade in bog 
turtles would be inconsistent with the Service's responsibilities to 
conserve, protect, and recover this species under the Act.

Issue 26

    One commenter recommended that the Service define ``heavy grazing'' 
if violations of section 9 due to heavy grazing are foreseen. Several 
other commenters stressed the importance of light to moderate grazing 
in maintaining bog turtle habitat in an early successional stage, 
thereby preventing canopy closure and minimizing encroachment of 
invasive native and exotic plant species.
    Service Response: The Service recognizes both the risks and the 
benefits associated with livestock grazing of bog turtle habitat. Where 
light to moderate grazing serves to maintain the suitability of bog 
turtle habitat, the benefits of grazing are likely to outweigh the 
risks (e.g., trampling of bog turtles or their nests, and nutrient 
input from animal excrement). Heavy grazing, however, is detrimental to 
bog turtles and their habitat. At the extreme, it is recognized by 
closely cropped vegetation and exposed soil (e.g., denuded, compacted 
or muddy) due to trampling and overgrazing. Due to the damage inflicted 
upon pasture land, heavy grazing is probably not a desirable or 
sustainable land use practice.
    The Service recognizes that the terms light, moderate, and heavy 
grazing are subjective; however, at this time the Service is unable to 
quantify these terms with respect to potential positive and negative 
effects to bog turtles and their habitat. The Service looks forward to 
working cooperatively with the agricultural community, researchers, and 
others to determine what levels of grazing (e.g., animal densities, 
seasons, rotations, etc.) are most beneficial to bog turtles.

Issue 27

    One commenter requested that if the Service proceeds with listing, 
information should be included with the listing to identify which 
population and/or habitat criteria must be met for the species to be 
considered no longer threatened.
    Service Response: This type of information is not included in the 
listing; however, it will be included in the species' recovery plan. 
Recovery plans, which are developed after a species is listed, identify 
delisting criteria and the tasks which must be implemented to achieve 
recovery.

Peer Review

    In conformance with Service policy on information standards under 
the Act (59 FR 34270; July 1, 1994), the Service solicited the expert 
opinions of three appropriate and independent specialists (Dr. Michael 
Klemens; Dr. Joseph Mitchell; and Dr. C. Kenneth Dodd, Jr.) regarding 
issues and assumptions relating to the biological and ecological 
information in the rule, and scientific data relating to the factors 
for listing. Comments received from these reviewers were supportive of 
Federal listing of the northern population.
    Dr. Klemens indicated that the Service had conducted a ``thorough 
analysis of the biological, ecological, and commercial issues that 
threaten this turtle,'' and had accurately depicted the conservation 
status and viability of the northern population. He also thought that 
the species had surpassed the threshold of threatened and should be 
listed as endangered (see Issue 18 for the Service's response), based 
on the Service's data, his professional opinion, and ``given the 
alarming drop in both suitable habitat and viable populations.'' He 
stated that the prognosis for the northern population ``is very poor if 
this species is reliant upon the varied habitat and take protection 
offered by the range States and the total absence of protection from 
commercial exploitation afforded by the non-range States.'' He 
concurred that designation of critical habitat is not prudent. With 
regard to the southern population, he (1) concurred with its listing as 
threatened due to similarity of appearance; (2) felt that with large 
areas of potential habitat unsurveyed, it was impossible for the 
Service to draw any conclusions about the status of the southern 
population (see Issue 20 for the Service's response); and (3) was

[[Page 59615]]

concerned that incidental take under the special rule would reduce bog 
turtle habitat and populations (see Issue 21 for the Service's 
response).
    Dr. Dodd also supported Federal listing of the bog turtle, 
concurring that illegal collection and trade posed a significant threat 
which States have been unable to address. He also agreed that loss of 
wetland habitat had reduced bog turtle populations, particularly within 
the northern range.
    Dr. Mitchell recommended that the northern population of the bog 
turtle be listed as endangered, and the southern population be listed 
as threatened. Despite the lack of geographic survey coverage in North 
Carolina, he felt that the trends in land use in the south were similar 
to those in the north, and that in the next 20 to 30 years the southern 
population would be in the same shape the northern population is in now 
(see Issue 20 for the Service's response). He referred to the status of 
the northern population as ``dire'' and stated that with most of the 
known bog turtle populations occurring on private lands, ``remaining 
habitat will certainly be reduced in the very near future to a point 
where most of them will be unable to support viable populations.'' He 
questioned whether the Service may have been politically motivated in 
proposing the northern population as threatened instead of endangered, 
and stated that such a decision ``should be based solely on biological 
criteria.''
    Dr. Mitchell agreed that the species is vulnerable to illegal 
collection and trade, and noted that bog turtles had even been stolen 
from the Atlanta Zoo, a locked facility. He also noted that a few days 
after a newspaper article appeared in the Richmond Times-Dispatch 
mentioning the proposed listing, he received ``information that several 
people in that area who collected turtles in the genus Clemmys for the 
pet trade were hard at work scouring topographic maps looking for 
potential sites to poach.''

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, the Service has determined that the northern population of 
the bog turtle should be classified as a threatened species. Procedures 
found at section 4(a)(1) of the Act and regulations implementing the 
listing provisions of the Act (50 CFR part 424) were followed. A 
species may be determined to be an endangered or threatened species due 
to one or more of the five factors described in section 4(a)(1). These 
factors and their application to the bog turtle (Clemmys muhlenbergii) 
are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 
of its Habitat or Range

    Habitat loss is a major factor for the past and present decline of 
bog turtles throughout much of their range. Wetland habitats have been 
drained and filled for development, agriculture, road construction, and 
impoundments. These activities have also severely fragmented the 
remaining habitat and have created physical barriers to movement, thus 
isolating existing bog turtle populations from other such sites.
    Even when located in upland areas, development and agriculture can 
also cause indirect hydrological alterations of adjacent wetland 
habitats. If these alterations present a barrier to surface water or 
groundwater flow, the wetland can become wetter or drier, either of 
which may render the habitat less suitable or unsuitable for bog 
turtles. If surface water flow is intercepted, groundwater recharge may 
be reduced, potentially reducing water levels in adjacent wetlands.
    The concentration of storm water runoff, such as discharges from 
storm water detention basins associated with developments, poses a 
threat to adjacent bog turtle habitat, as illustrated by a documented 
case of habitat destruction. A New Jersey bog turtle site was destroyed 
over the course of 4 years as water from an upland storm water 
detention basin was released into an adjacent wetland. The storm water 
discharge carved a channel through the wetland; modified the site 
hydrology by removing the surface inundation and many of the spring-fed 
seeps; and increased the invasion of woody and annual plant species 
which replaced the sedges and rushes typical of bog turtle habitat. Bog 
turtles no longer occur at this site (Torok 1994).
    Development in the vicinity of wetlands also poses a threat when 
the water table is lowered due to the sinking of wells, or when roads 
act as barriers to the normal flow of surface water (Klemens 1988, 
1989). Urban, commercial, and residential development contribute to 
increased traffic (leading to increased bog turtle road-kills), surface 
water pollution, and accelerated succession by invasive native and 
exotic plant species (due to changes in wetland hydrology, and 
suppression of natural factors that impede succession).
    Untimely mowing or burning and the use of herbicides and pesticides 
on adjacent agricultural fields also degrade bog turtle habitat 
(Klemens 1988). Many wetlands occupied by bog turtles are located in 
agricultural areas that are subject to frequent livestock grazing. 
Light to moderate grazing impedes plant succession by minimizing the 
encroachment of invasive native and exotic plant species. However, 
heavy grazing destroys bog turtle habitat by cropping and trampling 
vegetation that is necessary for turtle nesting, basking, foraging, and 
cover.
    Three of Connecticut's eight known bog turtle sites have already 
been extirpated. A Fairfield County population was obliterated by 
industrial development, and two Litchfield County populations were 
destroyed by pond construction. The five remaining sites are small, 
isolated pockets ringed by development, with ``no opportunity for 
turtle movement between locations for interbreeding or to escape 
successional changes'' (Julie Victoria, Connecticut Department of 
Environmental Protection, in litt. 1997). Residential development and 
natural plant succession have already contributed to the partial loss 
of two of these extant populations in Litchfield and Fairfield counties 
(Victoria, in litt. 1994). Also, in the vicinity of the current 
populations are ``remnants of what were at one time suitable habitats 
which have been altered by agricultural practices, housing development, 
ponding, etc.'' (Hank Gruner, Science Center of Connecticut, in litt. 
1997).
    Only a small fraction of Delaware's freshwater wetlands are 
potential bog turtle habitat, and between approximately 40 and 50 
percent of the State's freshwater wetlands have already been lost 
(Tiner 1985). The four remaining bog turtle populations are threatened 
by invasive exotic plant species, collecting, and development (Gelvin-
Innvaer and Stetzar 1992); one of these sites is also threatened by a 
proposed reservoir project.
    Maryland's 178 historical bog turtle occurrence locations (Taylor 
et al. 1984) are represented by 90 (population analysis) sites, 25 of 
which have been lost in the last 15 years (Smith, in litt. 1994). Plant 
succession and exotic plant invasions have caused the extirpation of 
turtles at some of these sites, while other sites were lost due to 
wetland destruction and alteration and stream channelization. In 
addition, heavy grazing has been implicated in the loss of at least six 
sites (Smith, in litt. 1994).
    Of the remaining 65 sites, 17 are considered good, 23 fair and 25 
poor. Habitat at 31 of these sites has been partially destroyed or 
degraded by pond construction (6 sites), filling of wetlands (1 site), 
heavy grazing (4 sites), and wetland ditching, draining, tiling and

[[Page 59616]]

stream channelization (13 sites) (Smith, in litt. 1994). Succession, 
exotic plants, pollution, and beaver activity also pose a threat to 
many of the remaining populations. In addition, at least five wetlands 
known or suspected to support bog turtle populations are threatened by 
proposed highway bypass projects and residential developments (Jeffrey 
Trulick, in litt. 1997).
    In Massachusetts, the bog turtle has a limited range, limited 
available habitat, and small populations (Thomas French, Massachusetts 
Division of Fisheries and Wildlife, in litt. 1997). There are four 
recorded bog turtle sites for the State; three extant and one 
historical. The historical population was lost when the fen was 
inundated after dam construction. One extant site supports a healthy 
bog turtle population but faces encroachment by giant reed, succession 
by alders, and the drying of several large channels feeding the fen 
(possibly due to diversion of water for agricultural purposes). Another 
site is threatened by residential development and by invasion of giant 
reed and alder (Klemens 1988). Although there are conservation 
agreements in place to protect the above two sites, they do not address 
the threats to habitat quality. In 1986, the fen at the third site was 
ditched and most of the water was diverted for cattle use. The water 
supply has subsequently been restored to the fen and the habitat 
partially restored. However, much of the suitable bog turtle habitat 
continues to be threatened by annual burning, severe overgrazing, and 
nutrient enrichment (Klemens 1986, 1988).
    Bog turtles have been extirpated from 8 of the 17 New Jersey 
counties in which they occurred (Bergen, Camden, Cape May, Gloucester, 
Mercer, Middlesex, Passaic, and Salem). Surveys conducted in 1988 and 
1989, revealed that 44 of the 75 known sites (recent and historical) 
had been lost due to natural succession (17 sites), wetland alteration 
(9 sites), and development (18 sites). In addition, bog turtles were 
located at only 12 of the 31 remaining sites (Zappalorti, in litt. 
1997). By 1994, a total of at least 53 sites had been lost--33 to 
urban, commercial, and residential development and wetland alteration 
and the remainder to plant community succession and the invasion of 
exotic plants (Sciascia and Zappalorti 1989; Sciascia and Zappalorti, 
in litt. 1994). Many of the remaining populations are small, isolated, 
and threatened by development, collection, agricultural pollution, and 
vegetative succession (Michael Torocco, in litt. 1997; Zappalorti, in 
litt. 1997); these threats are exacerbated by the proximity of the 
sites to urban and suburban areas (e.g., Philadelphia, Camden, Trenton, 
and New York City). As of 1996, there were 53 known extant bog turtle 
sites in New Jersey (Sciascia and Zappalorti, in litt. 1994; Sciascia, 
in litt. 1997). Eight are considered good, 21 fair, and 18 poor, and 6 
are of unknown status. Based on recent surveys, the suitability of 
three of these sites declined since they were originally ranked in 1993 
and 1994 (Sciascia, in litt. 1997).
    Bog turtles were reported from 17 counties in New York, but have 
been eliminated from 12 counties (Albany, Genessee, Onondaga, Oswego, 
Otsego, Rockland, Sullivan, Tompkins, Ulster, Warren, Wayne, and 
Westchester) (Breisch et al., in litt. 1994). Of New York's 24 
remaining sites, only 18 populations are extant; of the 18 occupied 
sites, 5 are considered good, 6 fair, and 7 poor. This represents a 
significant reduction in range and reflects the loss of at least 33 of 
57 bog turtle sites.
    The bog turtle's range in New York is now limited to the Lower 
Hudson River and Housatonic River drainages in the southeastern corner 
of the State, and to one site in western New York. In western New York, 
six of the seven historical bog turtle sites have been lost. Two sites 
were eliminated due to plant community succession; one was destroyed by 
a sand and gravel mining operation and dumping of concrete rubble; and 
two were eliminated due to plant succession and hydrological alteration 
(due to agricultural activities at one site and construction of the 
Erie Canal at another) (Breisch et al., in litt, 1994; Collins 1990). 
Loss of the disjunct population in the Lake George watershed is 
attributed to plant succession, while the loss of the Susquehanna River 
drainage population was caused by the construction of an interstate 
highway (Breisch et al., in litt. 1994).
    At least 26 known bog turtle sites have been lost in southeastern 
New York due primarily to road construction, impoundments, plant 
succession, and development. In addition, the historical bog turtle 
sites on Staten Island were eliminated by development (Nemuras 1967). 
In western New York, the viability of the Seneca County site is 
questionable, since it is threatened by collecting, plant succession 
and construction of an interstate highway through the wetland within 
200 feet of bog turtle habitat (Breisch et al., in litt. 1994).
    Of the remaining 24 bog turtle sites in New York, most are of poor 
quality. The presence of bog turtles at six sites is highly 
questionable since turtles have not been reported from these sites for 
15 to 25 years, and habitat conditions at most of these sites have 
deteriorated. Most of the known extant sites are threatened by habitat 
loss and degradation due to residential and commercial development, 
road construction, and vegetative succession. The New York Natural 
Heritage Program recently reported that, based on additional surveys 
conducted since 1994, ``there are no sites in New York whose status has 
improved since the 1994 assessment, whereas several sites have 
declined'' (Novak, in litt. 1997). At least 99 percent of bog turtle 
habitat in New York occurs on private lands and all but two of the 
remaining populations are found in areas of high human population 
density. One researcher noted that even State acquisition does not 
necessarily ensure the protection of bog turtle habitat, as one site 
acquired by New York has been negatively affected by subdivisions, 
exotic plant species, and collection (Behler, in litt. 1997).
    In Pennsylvania, 28 of the 71 known bog turtle occurrences are 
considered extirpated. Bog turtles have been extirpated from Mercer, 
Crawford, Delaware, and Philadelphia counties. The reasons for the loss 
of a disjunct population, represented by three historical locations, in 
the northwestern counties are unknown. However, much of the historical 
bog turtle habitat at Pymatuning Swamp was destroyed after a dam was 
constructed to create Pymatuning Lake.
    In Pennsylvania, most bog turtle habitat is concentrated in the 
southeastern corner of the State, within portions of the Delaware and 
Susquehanna River drainages. Land use in southeastern Pennsylvania is 
primarily urban (several large cities, including Philadelphia, 
Harrisburg, Reading, Lancaster, and York are located there), 
residential, and agricultural. Agricultural areas are intensively 
farmed and are facing increasing threats from residential development. 
Development, urbanization, road construction, and agriculture are 
largely responsible for the loss of bog turtle habitat in southeastern 
Pennsylvania, and continue to pose threats to the species. Extirpation 
of bog turtle populations was noted by Robotham (in Nemuras 1967), who 
documented the destruction of two bog turtle sites in the West Chester-
Downington area of Chester County in the early 1960s. One site was 
destroyed after a housing development company constructed a road 
through the center of the marsh and drained the marsh for development. 
The other site

[[Page 59617]]

was destroyed by a bypass road, commercial development, and excavation 
for a lake.
    Due to prevalent habitat fragmentation, many remaining extant sites 
in Pennsylvania are small, isolated, and support few bog turtles; these 
sites are at great risk from collection, agricultural pollution, and 
vegetative succession (Torocco, in litt. 1997). Some sites are in the 
process of being encircled by residential developments; these 
developments often encroach to the very edge of delineated wetlands, 
and it is not unusual for lot boundaries to extend well into wetlands. 
Ground water withdrawal also poses a threat to some sites; a site in 
Berks County is threatened by a proposal to withdraw over 250,000 
gallons of groundwater per day to market as spring water.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The bog turtle is a target for pet collectors due to its rarity in 
the wild, distinctive coloration, and small size. Take (primarily 
illegal) both for the national and international commercial pet trade 
industry has occurred for many years. Collecting is a significant 
factor in the species decline and is an ongoing threat to its continued 
existence in the wild (Anon. 1991; Earley 1993; David Flemming, U.S. 
Fish and Wildlife Service, in litt. 1991; Herman 1990; Klemens in 
press; Stearns et al. 1990; Tryon 1990; Tryon and Herman 1990). During 
the last 5 to 10 years, an increasing number of bog turtles have been 
advertised for sale, and prices have increased substantially. The 
increase in price most likely reflects the increase in demand for the 
turtles; the increase in demand increases the threats to the wild 
populations (Tryon and Herman 1990).
    Atlanta Zoo personnel reported that from 1989 to early 1991, over 
1000 bog turtles were exported to Japan. These figures differ 
significantly from CITES data and represent a significant amount of 
unreported illegal trade (Anon. 1991). The World Wildlife Fund recently 
listed bog turtles as among the world's top 10 ``most wanted'' 
endangered species (Earley 1993). According to Alan Salzburg, President 
of the American Turtle and Tortoise Society, the bog turtle is 
considered the most prized turtle in the United States, and when bog 
turtle locations become publicly known, they are exploited by 
collectors within 1 year (Laura Hood, Defenders of Wildlife, in litt. 
1997).
    Due to the threats facing bog turtle populations, the Society for 
the Study of Amphibians and Reptiles adopted a resolution calling for 
the prohibition of collection from wild populations (Stearns et al. 
1990). Due to the small size of existing populations, and the low 
reproductive and recruitment potential of this species, the removal of 
even a few breeding adults can do irrevocable damage to a population 
(Tryon 1990). Collecting has been a factor in the reduction or 
extirpation of several bog turtle populations in Delaware (Anon. 1991), 
Maryland (Anon. 1991; Smith, in litt. 1994), Massachusetts (Anon. 
1991), New Jersey (Farrell and Zappalorti 1989; Zappalorti, pers. comm. 
1994; Zappalorti, in litt. 1997), New York (Breisch, in litt. 1993; 
Breisch et al., in litt. 1994; Collins 1990; Behler, in litt. 1997), 
and Pennsylvania (Ralph Pisapia, U.S. Fish and Wildlife Service, in 
litt. 1992; Zappalorti, in litt. 1997). Many sites in these States have 
suitable habitat, but have much-reduced bog turtle populations, 
probably due to collecting.
    Throughout the bog turtle's entire range, States regulate take 
through classification of the species as endangered (in Connecticut, 
Delaware, Massachusetts, New Jersey, New York, Pennsylvania, and 
Virginia) or threatened (in Georgia, Maryland, North Carolina, South 
Carolina and Tennessee), yet trade continues.
    Illegal trade is difficult to detect due to the questionable origin 
of turtles being offered for sale. Bog turtles are often ``laundered'' 
through States which either do not have native populations (e.g., West 
Virginia, Florida, California), or through States which have inadequate 
protection of their own bog turtle populations (Charles Bepler, U.S. 
Fish and Wildlife Service, in litt. 1993; Breisch, in litt. 1993; 
Michael Klemens, in litt. 1990). For example, in recent years dealers 
have claimed West Virginia as the State of origin for bog turtles; 
however, there is no evidence to support the contention that the bog 
turtle occurs in that State (Dennis Herman, Project Bog Turtle 
Coordinator, in litt. 1997; Tom Thorp, North Carolina Herpetological 
Society, in litt. 1997). Hatchling and juvenile turtles marketed as 
``captive-born'' are usually offspring from gravid adult females 
illegally brought into captivity and held until they deposit eggs. The 
eggs are then hatched in captivity, and the captive-born (but not 
captive-bred) offspring are then marketed or retained (Bepler, in litt. 
1993).
    A few specific instances of illegal bog turtle collecting and trade 
are reported below:
    (1) An undercover officer purchased eight bog turtles from a person 
who had collected them near Lancaster, Pennsylvania. Also, two 
additional bog turtles were recovered from persons who had gotten them 
from friends allegedly in the New York area (Bepler, in litt. 1993);
    (2) An individual from New Jersey was arrested for bringing bog 
turtles from New Jersey to Florida and selling them as captive-born. It 
is suspected that he collected about six turtles per year over a period 
of several years (Bepler, in litt. 1993);
    (3) A reliable source in New York reported that over 2000 wild-
caught bog turtles were shipped to Japan in a 2-year period (Murdock, 
in litt. 1990);
    (4) Researchers found several turtle traps and a much-diminished 
bog turtle population at an important bog turtle site in Pennsylvania 
(Pisapia, in litt. 1992);
    (5) In 1993, a New Jersey resident purchased 47 bog turtles in 
Florida, and since 1984 had also bought 20 additional bog turtles. This 
individual supposedly has an active breeding program for bog turtles 
(Terry Tarr, U.S. Fish and Wildlife Service, in litt. 1993);
    (6) When confronted in a New York wetland, an individual claiming 
to be a birdwatcher revealed the contents of the cloth bag he was 
carrying--a bog turtle and spotted turtle (Paul Novak, New York Natural 
Heritage Program, in litt. 1990);
    (7) A reliable source reported seeing approximately 60 bog turtles 
at the Ohio residence of a person who frequents reptile shows. Based on 
the physical appearance of the bog turtles, they were not captive-bred 
(Scott Smith, Maryland Department of Natural Resources, in litt. 1996);
    (8) Bog turtles have been available at the major Herpetological 
Expo in Orlando, Florida for the last 2 years (Herman, in litt. 1997; 
Thorp, in litt. 1997); and
    (9) Bog turtles were observed in several Florida dealerships in 
1996, although they have not been openly advertised for sale (Herman, 
in litt. 1997).
    The general consensus among bog turtle researchers, nongame 
biologists, and law enforcement officials is that illegal collecting is 
occurring at a much greater rate than detected or reported (Anon. 1991; 
Breisch, in litt. 1993; Flemming, in litt. 1991). Bog turtles are 
already extremely low in numbers throughout much of their range, and 
any additional take could eliminate marginal populations and hamper 
survival and recovery efforts.
    Protecting existing sites for bog turtles can pose a threat when 
these specific sites are revealed and publicized. In addition to the 
threat of collection for the pet trade industry, collection of bog

[[Page 59618]]

turtles for exhibition at nature centers is also a threat (Anon. 1991).

C. Disease or Predation

    Bog turtles (particularly the eggs and young) are preyed upon by 
raccoons, opossums, skunks, foxes, snapping turtles, water snakes, and 
large birds (Herman and George 1986). Predation by raccoons appears to 
increase in areas with high human density, since raccoons favor 
fragmented areas consisting of farmland, forests, and residential 
development (Klemens 1989).
    In some cases, predation contributes to population declines by 
impairing reproductive recruitment so that the population age structure 
is skewed toward older individuals (Zappalorti and Rocco 1993). 
Zappalorti (in litt. 1997) reported that one of his Pennsylvania study 
sites has undergone a dramatic population decline in the past 25 years. 
Although 14 different nests containing 52 eggs were located at this 
site, the only non-adults found during the 3-year study were an empty 
shell of a dead juvenile and 3 hatchlings. Also, 93 percent of the 
population structure was strongly skewed towards old adults, in favor 
of females. In monitoring the fate of 21 eggs, he documented that 6 
hatched, 10 were taken by predators, 2 were broken by nesting females, 
and 3 failed to hatch. Predation of eggs and/or hatchlings, therefore, 
may play a significant role in reducing the size of the population and 
skewing its age structure.
    Of additional concern is the recent discovery of Mycoplasma (the 
bacterium that adversely affects the desert tortoise (Gopherus 
agassizii)) at a bog turtle site in New York (Behler, in litt. 1997; 
Paul Novak, New York Natural Heritage Program, in litt. 1997). This 
disease has the potential to cause significant declines in bog turtle 
populations. The site where Mycoplasma has been discovered ``has been 
identified as one of the best remaining New York sites and lies in a 
valley with additional, extant sites leading to the possibility of 
spread of the disease through a significant portion of the remaining 
bog turtle range in New York State'' (Novak, in litt. 1997).

D. The Inadequacy of Existing Regulatory Mechanisms

    Bog turtles receive some degree of protection through State 
listings as endangered or threatened species, and take from the wild 
within all range States requires a valid permit.
    In Connecticut, the bog turtle is listed as endangered and the take 
of endangered species is prohibited. Regulations require that any 
person owning or possessing a bog turtle must register with the 
Wildlife Bureau of the Department of Environmental Protection. There 
are no special provisions for the protection of species of special 
concern under Connecticut's wetland laws and regulations and only about 
10 percent of the wetland permits issued by townships are checked for 
species of special concern (Doug Cooper, Connecticut Department of 
Environmental Protection, pers. comm. 1994).
    In Delaware, the bog turtle is listed as endangered and, except 
under permit, it is unlawful to import, transport, possess, or sell 
this species. Currently, there is no regulatory mechanism to protect 
wetland habitat, since Delaware's wetland laws only address tidal 
wetlands.
    In Maryland, the bog turtle was listed as endangered in 1972 when 
bog turtle populations were extant at only 5 of the 23 then known 
historical occurrence locations. However, it was removed from the State 
endangered species list in 1982 after 173 new occurrence locations were 
discovered during surveys conducted between 1976 and 1978 (Smith 1994, 
Taylor et al. 1984). In 1992 and 1993, the Maryland Department of 
Natural Resources conducted follow-up surveys of the 178 occurrence 
locations documented by Taylor et al. (1984) to support bog turtles. Of 
the 159 occurrence locations surveyed, bog turtles were found at 91 
occurrence locations; this represents a 43 percent reduction of bog 
turtle occurrence locations over a 15-year period (Smith 1994). Based 
on the results of these surveys, bog turtles are now classified as 
threatened in Maryland. Bog turtles also receive additional protection 
under the State's Reptile and Amphibian Possession and Permit 
Regulations which regulate the possession, breeding, sale, and trade of 
certain native reptiles and amphibians. Under these regulations, it is 
illegal to take bog turtles from the wild or to breed them in 
captivity. In addition, the regulations prohibit the possession, sale, 
offering for sale, trade, or barter of any turtle with a carapace 
length less than 4 inches (which applies to most bog turtles due to 
their small size).
    A portion of bog turtle habitat in Maryland receives some degree of 
protection under the Nontidal Wetlands Protection Act. Habitat in 
agricultural areas receives little or no protection due to the Act's 
exemption of agricultural activities from permit requirements.
    In Massachusetts, the species is classified as endangered, and it 
is unlawful to take or possess bog turtles without a permit. Currently 
no person in the State has a valid permit to possess bog turtles (Tom 
French, Massachusetts Department of Fisheries and Wildlife, pers. comm. 
1994). Its habitat receives some degree of protection under the 
Massachusetts Wetlands Protection Act which prohibits permitted 
projects from having an adverse effect on wetland habitat that supports 
endangered and threatened species or species of special concern. This 
law also allows for a 100-foot buffer zone around such wetlands when 
activities in the buffer zone could result in the alteration of 
adjacent wetlands (Melvin and Roble 1990).
    In New Jersey, the bog turtle is listed as endangered. It is 
unlawful to take, possess, transport, export, process, sell, offer for 
sale, or ship bog turtles without a permit. Bog turtle habitat receives 
some protection under the Exceptional Resource Value Wetland provision 
of New Jersey's Freshwater Wetland Protection Act. This law allows for 
a 150-foot buffer zone around wetlands, includes a stringent permit 
review process, and prohibits activities that would likely jeopardize 
or destroy bog turtles habitat (Torok, pers. comm., 1994). Many 
agricultural activities are exempt from these regulations.
    In New York, the bog turtle has been listed as endangered since 
1971, and the animal and its parts (including eggs) are protected from 
unauthorized take, import, transport, possession, or sale. Wetlands 
occupied by an endangered or threatened species are considered Class 1 
Wetlands, which receive some added protection from filling and 
excavation. Certain activities, such as draining of wetlands for 
agriculture, are exempted from permitting requirements as long as no 
excavations are required to accomplish the draining.
    In Pennsylvania, the bog turtle is listed as endangered. It is 
illegal to catch, take, kill, possess, import, export, sell, offer for 
sale, or purchase any individual of this species, alive or dead, or any 
part thereof, without a special permit. Bog turtle habitat receives 
some degree of protection under State wetland regulations which 
categorize wetlands that serve as habitat for endangered or threatened 
flora or fauna as ``exceptional value wetlands.'' Issuance of permits 
to alter such wetlands is contingent upon meeting specific 
requirements.
    Section 404 of the Clean Water Act (33 U.S.C. 1344 et seq.) (CWA) 
regulates the discharge of dredged or fill material into the waters of 
the United States. The phrase ``waters of the United States'' reaches 
to the farthest extent permissible under the Commerce Clause

[[Page 59619]]

and includes rivers, lakes, streams, ponds and wetlands. It does not 
include prior converted cropland. The U.S. Army Corps of Engineers 
(Corps) and the U.S. Environmental Protection Agency (EPA) are 
responsible for administering section 404. The Corps is responsible for 
program administration; the EPA has an important oversight role. 
Section 404 requires that project proponents obtain a CWA section 404 
permit from the Corps before undertaking activities in waters of the 
United States involving a discharge of dredged or fill material. These 
regulatory agencies are also required to consult with the Service and 
State resource agencies regarding potential impacts of these projects 
on fish and wildlife.
    The Corps authorizes projects involving the discharge of dredged or 
fill material into waters of the United States using either individual 
permits or general permits. Individual permits are carefully evaluated 
through the Corps' public interest review and its analysis of 
compliance with the EPA's 404(b)(1) guidelines. The EPA's 404(b)(1) 
guidelines require a rigorous examination of the availability of 
practicable alternatives, and prohibit the authorization of any project 
that would result in significant adverse impacts, among other 
requirements. General permits are issued for activities which are 
similar in nature and which result in no more than minimal 
environmental effects on a single project and cumulative adverse impact 
basis. General permits also take several forms, including nationwide 
permits, which are available for the entire country, and State 
Programmatic General Permits, which are linked to State wetland 
regulatory programs, and which attempt to integrate State and Federal 
programs for authorizing minor impact activities. The purposes of all 
general permits are to provide workload relief for the Corps for 
projects which should not require a lot of analysis and to provide some 
measure of relief for the public for activities which are similar in 
nature and result in only minor impacts.
    The regulatory relief and expedited permit review associated with 
general permit authorization is based on a one-time only determination 
that the general permit itself will meet the 404(b)(1) guidelines and 
thus would not allow authorization of projects with more than minimal 
impacts. Following adoption of a general permit, projects which fit the 
terms and conditions of the general permit are authorized with little 
scrutiny. Some require that the applicant notify the Corps before using 
the permit; others do not require any notification as long as they meet 
the permit conditions.
    The Corps currently utilizes 39 nationwide permits, including 
Nationwide Permit 26, which addresses the discharge of dredged or fill 
material for any purpose in isolated waters or headwaters. Nationwide 
Permit 26, until 1996, was available for use for projects up to 10 
acres. It has now been modified for use for fills of up to no more than 
3 acres. When the fill activity is larger than \1/3\ acre, the permit 
applicant must notify the Corps prior to permit use. For projects less 
than \1/3\ acre, the permittee must submit a report within 30 days to 
the Corps providing basic information about the permit's use. The Corps 
plans to phase out Nationwide Permit 26 as there is a high likelihood 
that the permit has resulted in more than minimal single project and 
cumulative adverse impacts. In its place, however, will be an 
additional unknown number of nationwide permits which will be designed 
for activities which are similar in nature. The potential adverse 
impacts of these additional nationwide permits are unknown at this 
time.
    The Corps can take discretionary authority and require an applicant 
to undergo a full individual permit process, if the Corps believes that 
the resource issues are significant, and if the Corps believes that the 
project requires additional consideration. For workload management 
reasons, this authority is not invoked frequently.
    Many of the States in the Northeast have eliminated many or most of 
the nationwide permits and replaced them with a single programmatic 
general permit which combines the State and Federal programs and sets 
thresholds and conditions for its use tailored to the aquatic resources 
and threats to those resources in their areas of jurisdiction.
    The bog turtle could potentially be affected by projects requiring 
404 permits, especially projects which would appear to meet the terms 
and conditions of nationwide permits such as Nationwide Permit 26. The 
Corps is planning to initiate a programmatic consultation on the 
impacts of nationwide permits on endangered species, and it is our 
expectation that listed species will receive adequate consideration 
following completion of the consultation process. However, under the 
CWA section 404 program, destruction of bog turtle habitat continues to 
be authorized.
    Furthermore, the bog turtle is affected by agricultural practices 
which are entirely exempt from regulation under section 404. Such 
activities take place without Corps or EPA oversight or review. In 
addition to an agricultural exemption for maintenance of existing 
agricultural drainage systems, other exempted activities include 
plowing, planting and harvesting in existing cropped wetlands, and 
construction or maintenance of farm roads and stock ponds as long as 
the activity is part of an ongoing farming operation.
    On July 1, 1975, the bog turtle was added to Appendix II of the 
Convention on International Trade in Endangered Species of Wild Fauna 
and Flora (CITES), and on June 11, 1992 (57 FR 20443), it was 
transferred from Appendix II to Appendix I. Both import and export 
permits are required from the importing and exporting countries before 
an Appendix I species can be transported, and an Appendix I species can 
not be exported for primarily commercial purposes. These CITES permits 
are not issued if the export will be detrimental to the survival of the 
species or if the specimens were not legally acquired.

E. Other Natural or Manmade Factors Affecting its Continued Existence

    Plant community succession and the invasion of wetland systems by 
exotic plant species have also contributed to the decline of the bog 
turtle (Behler, in litt. 1997; Zappalorti, in litt. 1997). Unless set 
back by fire, beaver activity, light to moderate grazing, or periodic 
wet years, some bog turtle habitats succeed into wooded swampland and 
become unsuitable for the species. Various human activities, such as 
fire suppression, beaver control, fertilizer and sediment runoff, and 
wetland draining, ditching and filling accelerate both natural 
succession and the invasion of exotic plants (Gelvin-Innvaer and 
Stetzar 1992, Klemens 1984).
    Development and agriculture adjacent to bog turtle habitat can 
result in soil disturbance and increases in the nutrient and sediment 
load, thus allowing for the invasion of exotic species such as 
multiflora rose (Rosa multiflora), purple loosestrife (Lithrum 
salicaria), giant reed (Phragmites australis), and reed canary grass 
(Phalaris arundinacea), as well as native species such as red maple and 
alder (Klemens 1984, 1989, and in press).
    Beavers pose a threat to those bog turtle populations that are 
isolated and/or occur within the only remaining suitable habitat within 
a watershed. Smith (in litt. 1994) reported that flooding caused by 
beavers now poses a threat to three bog turtle populations in Maryland.
    Thick deposits of iron bacteria, suggesting possible contamination 
from pollutants, have been found at three bog

[[Page 59620]]

turtle sites in Maryland. Reptile and amphibian populations at these 
sites are much smaller in size than one would expect based on the 
habitat characteristics (Smith, in litt. 1994). Wetland habitats are 
also vulnerable to pollutants (oil and grease) carried by storm water 
runoff. Farrell and Zappalorti (1989) reported that one New Jersey 
wetland occupied by bog turtles was degraded by trash and motor oil 
that was carried through a storm drain.
    The bog turtle is also vulnerable to local extirpation and range-
wide reduction due to--(1) the small size of many populations; (2) the 
isolation of existing populations; (3) the delay in reaching sexual 
maturity; (4) low juvenile recruitment rates; and (5) relatively low 
mobility and small home ranges (Arndt 1977, Chase et al. 1989). 
Isolation of populations prevents gene flow which can result in an 
inbred population with low fecundity. Further, isolation and habitat 
fragmentation prevent recolonization of existing habitat or expansion 
and colonization into newly created habitats.
    Vehicles and livestock pose a direct threat to bog turtles because 
they can kill and injure individuals. Roads near occupied bog turtle 
sites contribute significantly to mortality as is evidenced by the 
number of dead turtles found along roadsides. Roads that are adjacent 
to or within wetlands pose the greatest threat to bog turtles (Arndt 
1977). Because livestock can trample bog turtles, a large number of 
livestock within a wetland can pose a threat to the turtle population 
(M. Klemens, pers. comm. 1994; S. Smith, pers. comm. 1994).
    The Tortoise and Freshwater Turtle Specialist Group of the IUCN 
recently evaluated the status of the bog turtle. Based on the species' 
precipitous decline and threats to its continued existence, the bog 
turtle was included as an endangered species on their 1996 IUCN Red 
List (Behler, in litt. 1997).
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present and future 
threats faced by the species in determining to make this rule final. 
Based on this evaluation, the preferred action is to list the northern 
population of the bog turtle as threatened, and the southern population 
as threatened due to similarity of appearance. In spite of existing 
State protective regulations, the northern population has declined by 
approximately 50 percent (primarily over the past 20 years) and has 
experienced a significant decrease in its known range. Currently, less 
than 200 extant sites remain in the north, and only 33 of these sites 
are likely to be able to support viable bog turtle populations over the 
long term. Most of the extant sites consist of small wetlands isolated 
from one another and often in close proximity to human habitation. 
Although the northern population of the bog turtle faces serious 
ongoing and potential threats, it is not currently in imminent danger 
of extinction. The northern population is, however, likely to become 
endangered throughout all or a significant portion of its range in the 
foreseeable future; therefore, classification of the northern 
population of the bog turtle as threatened is appropriate. Critical 
habitat is not being designated for the reasons described below.
    Although final listing determinations are usually not effective 
until 30 days after their publication in the Federal Register, such a 
delay would pose an additional, unacceptable risk to the bog turtle. 
Several persons and State agencies have expressed a concern about the 
heightened risk of illegal collection due to the proposed listing, and 
requested that the final listing be implemented as soon as possible to 
reduce this risk. One of the peer reviewers of the proposed rule noted 
that he had ``received reliable reports of increased interest in the 
location of bog turtle sites by well-known collectors. There is a 
heightened threat of take right now as collectors are stockpiling bog 
turtles in anticipation of a federal listing.'' Therefore, due to the 
significant ongoing threats of illegal collection and trade, the 
Service has determined that the bog turtle will receive full protection 
under the Act effective upon publication of this rule in the Federal 
Register.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. Conservation means the use of all methods and procedures 
needed to bring the species to the point at which listing under the Act 
is no longer required.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is determined to be endangered or threatened. The Service 
finds that designation of critical habitat for the bog turtle is not 
prudent. Service regulations (50 CFR 424.12(a)(1)) state that 
designation of critical habitat is not prudent when one or both of the 
following situations exist, (1) The species is threatened by taking or 
other human activity, and identification of critical habitat can be 
expected to increase the degree of threat to the species; or (2) such 
designation of critical habitat would not be beneficial to the species.
    Listing of the bog turtle as threatened elevates the awareness of 
the rarity of the species, thereby increasing the likelihood of take by 
private and commercial collectors. The listing could lead to increased 
illegal take and the risk of eggs being accidentally destroyed by 
collectors searching for adult turtles. The publication of precise maps 
and descriptions of critical habitat in the Federal Register would 
increase the vulnerability of the bog turtle to the threats of 
collection and accidental destruction of its eggs.
    Designation of critical habitat could also increase the 
vulnerability of bog turtle habitat to intentional destruction by 
landowners who do not want a protected species on their property. Tryon 
and Herman (1990) report that on more than one occasion, landowners, 
fearing involvement from State or Federal authorities, have drained 
(ditched) bog turtle habitat after researchers visited the site.
    Furthermore, designation of critical habitat for the bog turtle 
would provide little or no benefit to the species or its habitat. 
Critical habitat receives consideration under section 7 of the Act with 
regard to actions carried out, authorized, or funded by a Federal 
agency. Critical habitat designation serves as notification to Federal 
agencies of the habitats which are essential for the conservation of 
the species; the Act requires Federal agencies to ensure that their 
actions do not result in destruction or adverse modification of 
critical habitat. The Service believes that notification to Federal 
agencies of the habitats which are essential for the conservation of 
the species can be accomplished informally through periodic 
coordination meetings, project-specific meetings, and other contacts; 
the Service believes that notification through these means ensures that 
other Federal agencies receive the most recent and reliable information 
concerning habitats

[[Page 59621]]

important for the conservation of the species. In addition, the Service 
believes that, because the ``jeopardy'' and ``adverse modification'' 
standards are similar, any project which would cause destruction or 
adverse modification of critical habitat would also jeopardize the 
continued existence of the species. In fact, biological opinions that 
conclude that a Federal agency action is likely to adversely modify 
critical habitat but not jeopardize the species are extremely rare.
    Because any benefit potentially provided by designation of critical 
habitat for the bog turtle would be outweighed by the increase in 
threats to the species and its habitat from illegal collecting and 
vandalism caused by such designation, the Service has determined that 
designation of critical habitat is not prudent. Protection of bog 
turtle habitat will be addressed through the section 7 consultation 
process and through recovery actions.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery action, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing encourages and results in 
conservation actions by Federal, State, and private agencies, groups, 
and individuals. The Act provides for possible land acquisition and 
cooperation with the States, and requires that recovery actions be 
carried out for all listed species. The protection required of Federal 
agencies and the prohibitions against taking and harm are discussed, in 
part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is listed as 
endangered or threatened. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(2) requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of any species listed as endangered or threatened, 
or destroy or adversely modify its critical habitat. If a Federal 
action could affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with the 
Service.
    Federal agency actions that may require consultation as described 
in the preceding paragraph include--Corps involvement in projects such 
as the construction of roads and bridges; Corps permitting of wetland 
filling and dredging projects subject to section 404 of the CWA and 
section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et 
seq.); Natural Resources Conservation Service projects; EPA 
authorization of discharges under the National Pollutant Discharge 
Elimination System; and U.S. Housing and Urban Development projects. In 
addition, Federal involvement under section 7 would be expected for 
management and other land use activities on Federal lands with bog 
turtle populations.
    The Act and implementing regulations set forth a series of general 
prohibitions and exceptions that apply to all threatened wildlife. The 
prohibitions, codified at 50 CFR 17.21, in part, make it illegal for 
any person subject to the jurisdiction of the United States to take 
(includes harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect; or to attempt any of these), import or export, 
ship in interstate commerce in the course of commercial activity, or 
sell or offer for sale in interstate or foreign commerce any listed 
species. It is also illegal to possess, sell, deliver, carry, 
transport, or ship any such wildlife that has been taken illegally. 
Certain exceptions apply to agents of the Service and State 
conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving threatened wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22 and 17.23. Such permits 
are available for scientific purposes, to enhance the propagation or 
survival of the species, and/or for incidental take in the course of 
otherwise lawful activities. For threatened species, permits also are 
available for zoological exhibition, educational purposes, or special 
purposes consistent with the purposes of the Act.
    It is the policy of the Service (59 FR 34272; July 1, 1994) to 
identify to the maximum extent practicable at the time a species is 
listed those activities that would or would not constitute a violation 
of section 9 of the Act. The intent of this policy is to increase 
public awareness of the effect of the listing on proposed and ongoing 
activities within a species' range. The Service believes, based on the 
best available information, that the following actions will not result 
in a violation of section 9:
    (1) Transferring individual turtles from roads to immediately 
adjacent habitat;
    (2) Light to moderate livestock grazing that prevents or minimizes 
the encroachment of invasive native and exotic plant species;
    (3) Possession of bog turtles legally acquired prior to the 
effective date of this rule and consistent with 50 CFR 17.4; and
    (4) Actions that may affect bog turtles and are authorized, funded 
or carried out by a Federal agency when the action is conducted in 
accordance with section 7 of the Act.
    With respect to both the northern and southern populations of the 
bog turtle, the following actions would be considered a violation of 
section 9:
    (1) Take of bog turtles without a permit (this includes harassing, 
harming, pursuing, hunting, shooting, wounding, killing, trapping, 
capturing, or collecting, or attempting any of these actions). However, 
with respect solely to the southern population, incidental take (see 
special rule below) would not be considered a violation of section 9;
    (2) Possess, sell, deliver, carry, transport, or ship illegally 
taken bog turtles:
    (3) Interstate and foreign commerce (commerce across State and 
international boundaries) and import/export (as discussed earlier in 
this section) without prior obtaining a threatened species, similarity 
of appearance, or CITES permit.
    With respect solely to the northern population, activities that the 
Service believes could result in the take of bog turtles include, but 
are not limited to:
    (1) Destruction or alteration of the species' habitat by activities 
that include, but are not limited to, draining, ditching, discharging 
fill material, excavation, impoundment, or water diversion, except as 
outlined in (4) above;
    (2) Destruction or degradation of wetland vegetation used by the 
turtles for nesting, basking, foraging, or cover; and
    (3) Discharging or dumping of toxic chemicals or other pollutants 
into wetlands occupied by the species.
    Questions regarding whether specific activities may constitute a 
violation of section 9 should be directed to the Field Supervisor of 
the appropriate Service Field Office as follows: in Pennsylvania, the 
Pennsylvania Field Office, 315 S. Allen Street, Suite 322, State 
College, PA 16801 (814/234-4090); in Maryland and Delaware, the 
Chesapeake Bay Field Office, 177 Admiral Cochrane Drive, Annapolis, MD 
21401 (410/224-2732); in New York, the New York Field Office, 3817 
Luker Road, Cortland, NY 13045 (607/758-9334); in Massachusetts and 
Connecticut, the New England Field Office, 22 Bridge Street, Concord, 
NH 03301-4986 (603/225-1411); and, in New Jersey, the New Jersey Field 
Office, 927 North Main Street, Building D1, Pleasantville, NJ 08232 
(609/747-0620). Requests for copies of the regulations

[[Page 59622]]

regarding listed wildlife and inquiries about prohibitions and permits 
may be addressed to the U.S. Fish and Wildlife Service, 300 Westgate 
Center Drive, Hadley, Massachusetts 01035 (telephone 413/253-8200; 
facsimile 413/253-8482).

Similarity of Appearance

    Section 4(e) of the Act authorizes the treatment of a species 
(subspecies or population segment) as endangered or threatened even 
though it is not otherwise listed as endangered or threatened if--(a) 
the species so closely resembles in appearance an endangered or 
threatened species that enforcement personnel would have substantial 
difficulty in differentiating between the listed and unlisted species; 
(b) the effect of this substantial difficulty is an additional threat 
to an endangered or threatened species; and (3) such treatment of an 
unlisted species will substantially facilitate the enforcement and 
further the policy of the Act.
    There are only slight morphological differences in this species 
throughout its range (Amato et al. 1993; Nemuras 1967), making it 
extremely difficult to differentiate the location from where bog 
turtles are taken. Presently, the origin and legality of a specimen 
(specific wetland, locality, or State) cannot be determined. This poses 
a problem for Federal and State law enforcement agents trying to stem 
illegal trade in the threatened northern population. The listing of the 
southern population as threatened due to similarity of appearance 
eliminates the ability of commercial collectors to commingle northern 
bog turtles with southern ones or to misrepresent them as southern bog 
turtles for commercial purposes. For these reasons, the Service is 
listing the southern population (occurring in the States of Georgia, 
North Carolina, South Carolina, Tennessee and Virginia) as threatened 
due to similarity of appearance to the northern population.
    The special rule exempts incidental take of the southern population 
of bog turtles. Incidental take is take that results from, but is not 
the purpose of, carrying out an otherwise lawful activity. For example, 
legal application of pesticides and fertilizers, livestock grazing and 
other farming activities, mowing, burning, water diversion, and any 
other legally undertaken actions that result in the accidental take of 
a bog turtle will not be considered a violation of section 9 of the Act 
in the States of Georgia, North Carolina, South Carolina, Tennessee, 
and Virginia. The Service believes that listing the southern population 
under the similarity of appearance provision of the Act, coupled with 
the special rule, minimizes enforcement problems and helps to conserve 
the northern population. It is the intent of the special rule to treat 
bog turtles from the southern population in the same way as the 
threatened northern population with regard to permit requirements for 
pre-Act wildlife (50 CFR 17.4).
    The Service believes that the provision to allow incidental take 
for the southern population (i.e., for land alteration activities in 
Georgia, North Carolina, South Carolina, Tennessee, and Virginia) will 
not pose a threat to the northern population because--(1) the two 
populations are sufficiently separate that incidental take of southern 
specimens will not inadvertently be applicable to members of the 
northern population, and (2) the primary threat to the northern 
population from activities involving the southern population stem from 
commingling of specimens in commercial trade.

National Environmental Policy Act

    The Service has determined that Environmental Assessments and 
Environmental Impact Statements, as defined by the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with regulations adopted pursuant to section 4(a) of the Endangered 
Species Act of 1973, as amended. A notice outlining the Service's 
reasons for this determination was published in the Federal Register on 
October 25, 1983 (48 FR 49244).

References Cited

    A complete list of all references cited herein is available upon 
request from the U.S. Fish and Wildlife Service, Pennsylvania Field 
Office (see ADDRESSES section).

Author

    The primary author of this document is Carole K. Copeyon (see 
ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, the Service amends part 17, subchapter B of chapter I, 
title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat 3500, unless otherwise noted.

    2. Amend section 17.11(h) by adding the following, in alphabetical 
order under ``Reptiles,'' to the List of Endangered and Threatened 
Wildlife:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                 Vertebrate                                                               
------------------------------------------------------                      population where                                 Critical                   
                                                         Historic range       endangered or        Status     When listed    habitat      Special rules 
           Common name              Scientific name                            threatened                                                               
--------------------------------------------------------------------------------------------------------------------------------------------------------
            Reptiles                                                                                                                                    
                                                                                                                                                        
                  *                  *                  *                    *                  *                  *                  *                 
Turtle, bog (=Muhlenberg).......  Clemmys              U.S.A. (CT, DE,     Entire, except GA,  T                      626           NA  NA              
                                   muhlenbergii.        GA, MD, MA, NC,     NC, SC, TN, VA.                                                             
                                                        NJ, NY, PA, SC,                                                                                 
                                                        TN, VA).                                                                                        
    Do..........................  ......do...........  ......do..........  U.S.A. (GA, NC,     T(S/A)         ...........           NA  17.42(f)        
                                                                            SC, TN, VA).                                                                
                                                                                                                                                        
                 *                  *                  *                  *                  *                    *                    *                
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend section 17.42 by adding paragraph (f) as follows:


Sec. 17.42  Special rules--reptiles.

* * * * *
    (f) Bog turtle (Clemmys muhlenbergii), southern population--(1) 
Definitions of

[[Page 59623]]

terms. For the purposes of this paragraph (f): Bog turtle of the 
southern population means any member of the species Clemmys 
muhlenbergii, within Georgia, North Carolina, South Carolina, Tennessee 
and Virginia, regardless of whether in the wild or captivity, and also 
applies to the progeny of any such turtle.
    (2) Prohibitions. Except as provided in paragraph (f)(3) of this 
section, the provisions of Sec. 17.31 (a) and (b) of this part applies 
to bog turtles of the southern population (see also 50 CFR part 23).
    (3) Take. Incidental take, that is, take that results from, but is 
not the purpose of, carrying out an otherwise lawful activity, does not 
apply to bog turtles of the southern population.

    Dated: October 23, 1997.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 97-29088 Filed 11-3-97; 8:45 am]
BILLING CODE 4310-55-P